Category ►►► Court Decisions

April 28, 2008

ID (the Other Kind): Beginning of the Death of the Democratic Party?

Today, the U.S. Supreme Court -- in a shock 6-3 decision (shocking because Justice John Paul Stevens was on the side of the angels!) -- held that states could indeed require voters to show photo-ID before voting... causing Sen. Charles Schumer (D-NY, 90%) to eructate, "This decision is a body blow to what America stands for -- equal access to the polls" (for senior citizens, minorities, and the poor... most of whom, apparently, carry no identification).

The Supreme Court upheld Indiana’s voter-identification law on Monday, declaring that a requirement to produce photo identification is not unconstitutional and that the state has a “valid interest” in improving election procedures as well as deterring fraud.

In a 6-to-3 ruling in one of the most awaited election-law cases in years, the court rejected arguments that Indiana’s law imposes unjustified burdens on people who are old, poor or members of minority groups and less likely to have driver’s licenses or other acceptable forms of identification. Because Indiana’s law is considered the strictest in the country, similar laws in the other 20 or so states that have photo-identification rules would appear to have a good chance of surviving scrutiny.

The ruling, coming just eight days before the Indiana primary and at the height of a presidential election campaign, upheld rulings by a Federal District Court and the United States Court of Appeals for the Seventh Circuit, which had thrown out challenges to the 2005 law.

It's not just Chuck Schumer who is incensed by this ruling, and more generally, by the voter-ID laws that sparked it; almost the entire Democratic party seems up in arms about the very idea of requiring government-issued photo-ID before voters are allowed to vote.

So why are they so adamant? Let's consider a few points that may edge us away from their stated reasons -- concern that "legitimate voters" will be disenfranchised -- and towards what I think is their real motivation.

1. While I agree that the "poor or members of minority groups" are less likely to have government ID, that is entirely by their own choice (or more likely, their own apathy).

Mere lack of money can't stop a voter from getting identification; although the Times doesn't consider it the kind of news "that's fit to print," the related AP story is more forthcoming on this point:

Indiana provides IDs free of charge to people without driver's licenses. It also allows voters who lack photo ID's to cast a provisional ballot and then show up within 10 days at their county courthouse to produce identification or otherwise attest to their identity.

So money is no object; government ID is literally "priceless."

2. Where is the evidence that registered voters who are senior citizens are less likely to have photo-ID from the government than younger voters?

In fact, I wouldn't be surprised to find that they're more likely, not less, to have identification. I suspect this unsourced claim is intended to broaden the pool of putative "victims" of voter-ID laws... and especially to broaden it to include as many Republicans as possible.

The Times article ends a heart-rending story about a black woman, a senior citizen, turned away from the polls in Indiana for lack of ID. The last line: "Ms. Williams, in her early 60’s, is black -- and is a Republican." (Cue melodramatic music.)

Last and most important point. When I say this decision, and the legislation it will spark, could spell the death of the Democratic Party, I don't mean because it will somehow -- metaphysically, perhaps -- make it harder for senior citizens (who are more likely to vote Republican anyway), the poor, and minorities to vote. It won't; even though the latter will still vote in lesser numbers than those who are more well off and those who are not "federally protected minorities," that has nothing to do with any supposed inability to get a photo-ID.

Rather, I think it will inflict a deep wound in the Democratic Party because:

3. Such bills will, when fully implemented -- for example, when extended to the rest of the United States and to include absentee balloting -- make it much, much harder to commit voter fraud... and today's Democratics depend so heavily on fraud, they probably can't survive without it.

Critics of the law make much of the fact that there have been so few prosecutions for voter fraud in Indiana. But that's Indiana, where Republican election officials pretty control the elections. I doubt that voter fraud has ever been a serious problem in that state.

But how about Chicago, Detroit, St. Louis, New York City, Compton, East L.A., New Orleans, Miami, and other cities and even entire states where Democrats control the "standards" required to vote? That is where you're going to find massive voter fraud that turns the Democratic majority into a supermajority -- and the Republican minority into political impotence.

Take Loretta Sanchez: She first won California's 46th district in 1996, beating "B-1" Bob Dornan by 984 votes. California officials threw out 124; and when Congress investigated, they found 624 more votes that were definitely fraudulent... which reduced Sanchez's lead down to 236 votes (out of about 100,000 votes cast). At that point, not being able to prove that the voter fraud Congress found was enough to flip the election, the House for political reasons voted to end the investigation.

But look here... according to a column by Wall Street Journal writer John Fund, the INS subsequently found that as many as 4,023 ballots were cast in the 46th district by "illegal voters." But since there was no way to know for sure whether these four thousand Hispanic non-citizens and unregistered Hispanic voters voted for Loretta Sanchez or Bob Dornan, that could not be used in the investigation of her "victory."

(Much of this work was done after the House voted to terminate the investigation, and the full House finally shut down the committee and INS investigation before it could find even more voter fraud, thus embarassing Newt Gingrich even further.)

But there is more in that same John Fund column:

In 2002, Dean Gardner, a losing GOP candidate for California's state legislature, sent out a survey to 14,000 first-time voters. A total of 1,691 surveys came back. The results were startling: 76 people admitted that they weren't citizens but had voted, while 49 claimed not to have registered at their correct residence, as the law requires. Gardner lost by only 266 votes.

In the 2000 election, as the Missouri secretary of state later discovered, 56,000 St. Louis-area voters held multiple voter registrations. No one knows how much actual fraud took place, but it may have played a role in the Democratic defeats of incumbent Republican senator John Ashcroft, who lost his seat by 49,000 votes, and gubernatorial candidate Jim Talent, who lost by 21,000 votes....

A Post analysis [of the 2000 presidential election vote in Florida] discovered that 5,600 people voted whose names matched those of convicted felons. "These illegal voters almost certainly influenced the down-to-the-wire presidential election," the Post reported. "Of the likely felons identified by the Post, 68 percent were registered Democrats."

Note that this only counts actual, bona-fide election fraud; Democrats also have an array of legal or quasi-legal ways to prevent enemy votes from being counted, ranging from closing polls in Republican-leaning districts earlier than those in Democrat-leaning districts, to hypercritical challenging of Republican votes by elections boards, to selective recounts, all the way to actually filing lawsuits attempting to suppress the Republican vote (as in the Florida cases filed in Martin and Seminole counties in 2000, seeking to disenfranchise 25,000 absentee voters). None of these would be affected by voter-ID laws.

I believe that voter fraud increased substantially after President Bill Clinton signed the motor-voter bill in 1993 -- which I vigorously opposed from the very beginning: If a person has so little interest in the franchise that he won't bestir himself to register unless he's practically forced, then I don't want him voting at all. Fund evidently agrees:

Why is such activity proliferating? It flows from the success of Democratic lawmakers in pushing aside clear, orderly, and rigorous voting procedures in favor of elastic and "inclusive" election rules that invite manipulation. A machine for corruption is the 1993 "Motor Voter Act," the first bill that President Clinton signed. The law requires government officials to allow anyone who renews a driver's license or applies for welfare or unemployment to register to vote on the spot, without showing ID or proof of citizenship. It also allows ID-free registration by mail. The law also makes it hard to purge voting lists of those who've died or moved. All this makes vote fraud a cinch, almost as easy as when Tammany Hall handed out pre-marked ballots.

In California, it is actually against state law for polling places to demand any form of ID that indicates citizenship. Not even Democrats try to defend that on its own grounds; it was simply pushed through the legislature in a power play. There can be no other purpose for such a bill than to make committing voter fraud as easy as taking a pie in the face.

ACORN (Association of Community Organizations for Reform Now), a socialist group that agitates for various left-wing causes, is the king of registration fraud, I suspect, having registered thousands and thousands of fake voters. But they have many competitors, including the Public Interest Research Group and Project Vote... nearly all of whom lean very far to the left.

I am convinced that it is this fact -- not weird speculation about the poor and certain minorities and their lack of interest in obtaining IDs -- that actually animates and drives the intense Democratic opposition to voter-ID laws across the country. But why would Democrats be so anxious to lock into place a system that practically begs for fraudulent voting -- unless they believe they really and truly need election fraud to stay in power?

I take their own obvious opinion of themselves and their election strategy very seriously. Thus I say again: If voter-ID bills sweep the rest of the country (the 30 states, plus D.C., that have no requirement to show a photo-ID before voting), and especially if it is extended to absentee balloting, then the Democratic Party as we know it today could collapse. It would most probably be replaced by a new and much more moderate Democratic Party. (It's much less likely to be replaced by a different party, since we have been stuck with these two for more than 150 years.)

But either way, the heyday of the contemporary, ultra-leftist Democratic Party of 2008 -- that can dither between nominating Hillary Clinton (left) or Barack Obama (lefter); that can openly call for America to declare defeat and go home from a war we're winning; that responds to a possible recession by proposing staggering tax increases (economic policy which even John Maynard Keynes rejected); that is willing to ally itself with America's enemies (and Islamic religious fundamentalists), applauds Communists like Oogo Chavez and Raul Castro, and argues that the CIA cannot interrogate captured foreign terrorists held abroad any harsher than police can interrogate an American citizen suspected of robbing a convenience store; that is so radical, it cannot gain power except through voter fraud -- that kind of Democratic Party is soon to pass from history.

It will not be missed.

Hatched by Dafydd on this day, April 28, 2008, at the time of 5:49 PM | Comments (14) | TrackBack

November 21, 2007

"Apt Natural - I Have a Gub"

Inveterate (or invertibrate) movie-goers will of course recognize the title immediately, coming from one of the first crime "mockumentaries" ever made.

So what can we expect as the Supremes warm up to the great gun-rights debate next year?

The decision itself will hinge on one fundamental question that has been controversial since the early 20th century, but was fairly commonly held, I believe, prior to 1900: Does the Second Amendment protect the gun rights of each individual legal resident -- or does it only protect the "rights" of states to have National Guard units?

(States do not have "rights," of course; only powers, privileges, and immunities. But gun prohibitionists are forced to use the word "rights," because that's what the Second Amendment uses, and they must match.)

All the blather about constitutional amendments being outmoded won't make a dent on the court -- either side; everything will hinge on what the words actually meant when they were written and what they mean today. The complete text of the amendment reads:

Yes, I know; it's overpunctuated by today's standards. But it was written in 1789, and different rules for punctuation applied.

Clearly, when the Founders ratified this amendment two years later, they envisioned a national militia in place of a standing army (they were down on permanent armies making permanent war).

The idea was that if we were attacked, word would go out to every hamlet and town (or "every omlet in town," as I used to think), and all the Minutemen would drop their scythes -- or their printing presses, though they'd better step nimbly out of the way if they didn't want to lose a toe or two -- grab their "Kentucky" long rifles (made in Pennsylvania), and band together into an unbreakable wall of national defense.

Obviously, we don't do things like that anymore... so how should we interpret the amendment now?

Those of us who believe in gun rights argue that with the rise in urban residency and the increased firepower of criminals, individuals still need private arms in order to "establish justice, insure domestic tranquility, provide for the common defense, [and] promote the general welfare." We argue that crime statistics, particularly those by Professor John Lott, demonstrate that an armed populace has less crime, not more, without any measurable increase in accidental gun deaths or injuries.

Those who support gun prohibition hang their hats on the first four words, arguing that the original purpose -- the citizen's militia that took the place of a standing army -- no longer exists, and the only corresponding extant entity (since the Dick Act, a.k.a. the Militia Act of 1903) is the National Guard (divided into state commands).

Therefore, the prohibitionists will argue, the rights "granted" by the amendment devolve upon the various states, which control the National Guards when not activated by the federal government.

I find this argument untenable for that very reason: Passing lightly over the idea of states having "rights," how can states possess the constitutional right to "keep and bear arms," if in the same breath we agree that D.C. can simply federalize those arms (and the folks keeping and bearing them), thus removing them from state control? It's utterly contradictory.

Ergo, either the amendment means nothing -- or else it means that the rights granted protected adhere only in "the people," as the words themselves make clear. In all other uses in the Constitution, "the people" translates to each individual person.

(Fundamental rights are not "granted" by the government, of course, but by "Nature and Nature's God." Governments can only protect them -- or violate them.)

Note that the Founders had no difficulty writing "the states" when they meant the states, as for example in the Tenth Amendment, which explicitly distinguishes between the states and the people:

I believe any fair-minded reading of the Second will lead a judge to agree that "the right of the people" in that amendment means the same as the exact, same phrase in the Fourth Amendment: an individual right held by each individual person. Thus, I believe that we can count on the four fair-minded judges, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, to vote to uphold the circus-court ruling finding the D.C. gun ban "unreasonable and unconstitutional."

I likewise believe, based upon their well-enunciated constitutional gestalt, that we can rely upon Justices Ruth Bader Ginsburg, Stephen Breyer, and David Souter to vote to restore the gun ban.

As usual, Justice Anthony Kennedy will be the National Enigma. But (be sure you're sitting down), I consider Justice John Paul Stevens to be a wild card... he might actually side with gun owners, basing his decision upon the second-amendment analysis of some liberal con-law professors, of which the most important are Lawrence Tribe and Alan Dershowitz, both of Harvard.

If I had to guess, I would expect that the Court would vote to confirm the decision of the D.C. Circus (overturning the Washington D.C. gun ban) by 6-3; I have a hard time believing that Justice Kennedy would vote against a position on such a controversial issue to which both Roberts and Stevens agreed.

On the political front, I'm not sure how much this will affect the presidential election. I disagree with Glenn Reynolds, who wrote:

This is probably bad for Democrats, given that most Americans believe they have some sort of right to arms under the Constitution.

It's also probably bad for Rudy Giuliani and Mitt Romney, who have generally been less supportive of gun rights than the other GOP contenders.

First, regardless of positions in the past, both Giuliani and Romney have rushed to get out in front of this case -- on the side of the angels. Rudy Giuliani:

Rudy Giuliani made the following statement today regarding the Supreme Court’s decision to review the Court of Appeals ruling in Parker v. District of Columbia:

"I strongly believe that Judge Silberman’s decision deserves to be upheld by the Supreme Court. The Parker decision is an excellent example of a judge looking to find the meaning of the words in the Constitution, not what he would like them to mean."

Mitt Romney:

Today, Governor Mitt Romney issued the following statement on the U.S. Supreme Court's decision to review District of Columbia v. Heller:

"It is my hope that the Supreme Court will reaffirm the individual right to keep and bear arms as enshrined in the Bill of Rights and protect law abiding gun owners everywhere. To further guard this fundamental liberty, as President, I will take care to appoint judges who will not legislate from the bench but will instead strictly interpret the Constitution."

Second, the great Democratic gun-control debate was in the 1990s... ancient history, as far as most voters are concerned. Except for some diehards in ultra-liberal districts or states (e.g., Sen. Chuck Schumer, D-NY, 100%), the Democrats have pretty much dropped gun control from their electoral lexicon...

Sen. Hillary Clinton (D-Carpetbag, 95%), who was a loud gun prohibitionist as recently as 1999-2000, nowadays barely mentions the topic. The closest I found was this April 2007 snippet:

"You have to balance the Second Amendment rights against keeping guns out of the hands of criminals and people who are unstable -- and that has always been what everyone I know has been seeking to accomplish," Senator Clinton said. "Maybe this tragic incident will get us to think about how to get back to that balance."

This hardly sounds like a response that would satisfy Rosie O'Donnell.

I like this piece, by the bye: The candidates were each interviewed a week after the Virginia Tech shootings; if ever there were a time to smoke out gun prohibitionists, that would have been it. Here is what Sen. Barack Obama (D-IL, 95%) said:

While Obama suggested there may be a need for restrictions on so-called semiautomatic guns, he contends Democrats must steer clear of alienating "lawful" gun owners. "I'm a strong believer in the rights of hunters and sportsmen to have firearms. I'm a believer in homeowners having a firearm to protect their home and their family," Obama said. "It's hard for me to find a rationale for having a 17-clip semiautomatic."

(I must confess puzzlement about Obama's 17-clip semiautomatic; I don't think I would buy one -- those "clips" must stick out like quills on a porcupine -- but I'd sure love to hold one in my hands... assuming I could find the grip hidden among the antenna-farm of clips.)

Finally, we have John Edwards; he mentions hunting but not self-defense... but he doesn't rule it out, either; he simply ignores that reason for owning a gun:

"I believe in the Second Amendment and I think it's important for hunters rights to be protected. It's part of my culture because of the way I grew up," Edwards said during a news conference Friday night in Des Moines. "But I don't think you need an AK-47 to hunt...There's some weapons that are not necessary for sportsmen and hunters."

(I'm sure that Rep. Dennis Kucinich, D-OH, 100%, Sen. Chris Dodd, D-CT, 95%, and Gov. Bill Richardson all favor heavy-handed gun control; but really, who cares? They're about as likely to be elected president as "Mother" Sheehan.)

Regardless of the actual beliefs of the Democratic front runners, and regardless of what they would really do if they got into office, none denies an individual Second-Amendment right to keep and bear arms; and Obama openly affirms it.

Thus, I just don't see this issue cutting significantly against the Democrats: Anybody who believes that they're secretly in favor of gun prohibition (as I believe) is almost certainly already in the GOP camp for 2008. So don't look for gun rights to tip the scales of the presidential race.

Nevertheless, if the case is adjudicated as I expect, it will be a stunning and wonderful day for civil liberties in America; and if it goes the opposite way, it will be a black mark we shall never live down. And even if there is no direct affect on the presidential race, the case should at least reopen the national conversation on individual rights vs. State power -- which should definitely benefit Republicans downticket.

Hatched by Dafydd on this day, November 21, 2007, at the time of 5:27 PM | Comments (6) | TrackBack

November 12, 2007

Federal Judge Declares "Mistrial" Equivalent to "Acquittal"

U.S. District Judge Benjamin H. Settle -- a Bush-43 appointee -- has found a novel way to prevent a cowardly Army lieutenant from having to stand trial at a court-martial for refusing to deploy to Iraq... and for calling the Commander in Chief a war criminal:

A federal judge has blocked the Army from conducting a second court-martial of 1st Lt. Ehren Watada of Honolulu, an Iraq war objector based at Fort Lewis, Wash., saying it's likely the second trial would violate his constitutional rights....

U.S. District Judge Benjamin H. Settle ruled yesterday that no court-martial will be held for Watada, a 1996 Kalani High School graduate, pending the outcome of his claim that it would violate his Fifth Amendment rights by trying him twice for the same charges.

Watada's first court-martial ended in a mistrial in February. Settle wrote that the military judge likely abused his discretion in declaring the mistrial.

Say, that's a good one: Judge Settle has just created three novel legal principles in one sitting... which bests the record of Charlemagne "Chipmunk Cheeks" Brandenborjk, who once consumed eleven distinct varieties of turnip borscht in a single meal. Judge Settle settled the following burning (at least smoldering) legal questions:

1. Does the principle of "double jeopardy," by which a person acquitted of an offense cannot be tried again on the same charge, extend also to cover prosecutions that end in a mistrial with no verdict at all? Judge Settle says Yes, thereby upending about thirty-eight decades of case- and statutory law.
2. Do the ordinary civilian courts have jurisdiction over military officers being tried in courts-martial by military judges for a military offense against the Universal Code of Military Justice during wartime? Judge Settle says Yes, thereby startling the stockings off'n Gen. George Washington.
3. Can a civilian judge look into the heart of a military judge and judge that the judge only called a mistrial for sneaky, underhanded reasons... and not because the defendant first stipulated X, and then based his defense on the denial of X? Judge Settle says Yes, and then goes on to guess what playing card you're hiding in your pocket.

Oh well; fools rush in where angels have dirty faces.

As to the first principle, most judges have accepted the basic idea that double-jeopardy only kicks in when there's been an actual verdict of not-guilty. I've never heard before that prosecutors are barred from retrying a defendant after a mistrial; perhaps one of our many lawyer-readers can enlighten us on this fine point of law.

The second is interesting, as it implies that military courts are inferior to civilian courts... even when trying military charges during wartime. (In his next case, Judge Settle is going to pick the 2008 Miss America and award last month's World Series to Colorado.)

But it's the third principle that's really wicked cool: According to Judge Settle -- who served for three years in the Judge Advocate General (JAG) corps -- anytime the Army (or presumably any other service) court-martials some malcontent, rabble rouser, or boot-quaking yellowbelly, any district judge in the general vicinity can step in and stop the trial on the grounds that he personally thinks the military judge is in cahoots with the prosecutor.

In February, military judge Lt. Col. John Head unexpectedly declared a mistrial in the third day of Watada's trial as the soldier prepared to take the stand in his own defense.

Head did so after he expressed concern that Watada did not understand what the soldier had earlier agreed to in what's called a stipulation of facts because it conflicted with his defense.

Now there's some obvious skulduggery on the part of Col. Head!

Happily, the Honolulu Advertiser has persuaded a fair-minded and unbiased analyst to give his considered opinion:

Honolulu attorney Eric Seitz, who represented Watada at the time, said yesterday that he believes the latest federal court decision means the case against Watada essentially is dead.

The Army can appeal the case to the 9th U.S. Circuit Court of Appeals, which would likely be unsuccessful, Seitz believes, or even the U.S. Supreme Court.

Seitz, an experienced military law attorney, said Watada's lawyers should resubmit his resignation and the Army should accept it "and put an end to it."

Sage advice from Watada's former attorney.

At some point, President Bush has got to put his foot down anent the clear and unambiguous distinction between military justice and civilian procedures: We simply cannot have the federal courts -- which are themselves completely unable to protect us from known terrorists -- monkeying with duly constituted courts-martial to make them equally worthless.

And while we're on the subject, President Bush needs to reach right into the State Department... and fire any diplomat who refuses to accept a posting to Iraq. That plus a vigorous prosecution of Lt. Ehren Watada would go a long way towards refocusing our governmental resources on stopping the bad guys, rather than endlessly debating the provenance and niceties of the Iraq war.

Hatched by Dafydd on this day, November 12, 2007, at the time of 7:34 AM | Comments (23) | TrackBack

September 18, 2007

Newsflash: Clinton Judge Finds Limit to Judicial Power

It's a bit sad that I consider it newsworthy that a federal judge appointed by President Bill Clinton, Martin Jenkins, has actually thrown out an activist, leftist lawsuit, filed by the state of California against automakers, alleging they have damaged the state by making cars that contribute to global warming. (Actually, the lawsuit was filed by former governor, former mayor, now Attorney General and perpetual nutjob Jerry Brown "on behalf of" the state of California; I didn't get to vote on it.) The judge held that setting such policy was rightly the task of the legislative branch of the federal government, not the judiciary:

A U.S. federal judge tossed out a lawsuit by California's attorney general on Monday seeking hundreds of millions of dollars from six automakers for damaging the state with climate-changing greenhouse gases.

Martin Jenkins, a federal judge in the Northern District of California, said the issue of global warming should be decided in the political rather than legal arena.

"The Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government," Jenkins wrote in approving the automakers' motion to dismiss the case.

(It's unclear from the article, but I think Judge Jenkins held that the federal courts do not have jurisdiction.)

I am stunned. I thought this would be a slam-dunk before a liberal judge in blue-state California. Evidently the Office of the Attorney General was likewise stunned, because its spokesman just made what is simultaneously the most fatuous and the most legally incompetent argument I've ever seen from that body:

The suit was the first seeking to hold manufacturers liable for global warming damages caused by greenhouse emissions. It said cars made by the six automakers account for more than 30 percent of human-generated carbon dioxide emissions in California, the most populous U.S. state.

"We understand why a district federal judge may not want to jump into a global warming thicket with both feet," Ken Alex, California's supervising deputy attorney general, said in an interview. "Having said that, the basic tenet of law is that where you describe a harm then there needs to be a remedy for it."

"Right now because the political branches -- the federal government, Congress and the executive branch -- have not acted, the state of California is left without a remedy."

Now I must again caution that I am not a real lawyer; I will cop to being a "Philadelphia lawyer" or a "sea lawyer," to playing one on this blog sometimes, and to thinking of myself as more informed on the law than 95% of laymen (and so much more modest, too!) So maybe I've misunderstood this point all these years.

But I remember both my lawyer father and a friend of mine who attended law school but chose not to become an attorney separately telling me the exact opposite. They said that the idea that "every harm has a legal remedy" is discussed as a false belief that many people have about the law. In other words, both these two lawyers told me that Counselor Alex is 180 degrees off course: Not every harm has a legal remedy; sometimes, bad things happen, and there is nobody you can collect from.

For example, suppose you're hiking in Yosemite, admiring the beautiful scenery. Too much so; you fail to note that the trail turns north, and you continue walking west... right into a creek, where you stumble, fall, and crack your kneecap on a rock.

Ow. Nobody can tell me that's not a "harm." You're in agony; you can't walk; you're stuck four miles from the nearest help. And you know what? There is not a single person in the world you can successfully sue. You have no legal remedy whatsoever. A bad thing happened to you -- because you were a dumbass.

Even overt actions that harm people in ways obviously known to the actor don't necessarily mean the victim has a valid lawsuit. For example, suppose the government condemns somebody's house under eminent domain (in order to build a public emergency trauma center), and suppose further they pay the owner market price plus 5%. But suppose the owner was born in that house, as were his family for the previous three generations, as well as his daughter; and suppose he would never have sold it for any amount of money at all. Hasn't he suffered a grievous harm?

Well, yes he has; but no, he has no real case against the government, because they paid him "just compensation." He has no legal remedy for the harm he suffered.

In the global-warming case, I'm certain that Jerry Brown will appeal to the 9th Circus Court, which could overturn the judge's ruling on the motion to dismiss. No matter, the loser will appeal to the Supreme Court; once there, I believe the majority will use Judge Jenkins' decision as the basis for confirming that there really, truly are limitations on legislating from the bench.

Thus it may turn out that Jerry Brown's most enduring legacy will be striking a mighty blow -- albeit inadvertently -- for judicial restraint. Exciting, isn't it?

Hatched by Dafydd on this day, September 18, 2007, at the time of 1:52 PM | Comments (5) | TrackBack

July 6, 2007

ACLU Left "Standing" Out in the Cold (and a Game of Pin the Party on the Judge!)

In a wonderful ruling today out of the Sixth Circus, the ACLU's gaggle of the perpeturally aggrieved was told to pack up their federal lawsuit against the NSA al-Qaeda intercept program; the appellate court held that none of them has standing -- meaning none could show that he, personally, was surveilled by the NSA.

The case, American Civil Liberties Union v. National Security Agency, was appealed by the Bush administration after federal Motown Judge Anna Katherine Johnston Diggs Taylor ruled in August that the program was unconstitutional and must immediately be ended; she magnanimously agreed to stay her ruling pending appeal... provided that appeal commenced in one week.

In October, the Sixth Circuit panel issued its own (unanimous) stay. And then today, it announced the 2-1 decision voiding the suit. (In an irritating but understandable act of judicial restraint, the court, once having found a lack of standing, did not reach the merits of the case.)

So it's time now to play -- pin the party on the judge! See if you can guess which president appointed which judge...

We have district-court Judge Anna Katherine Johnston Diggs Taylor and appellate court Judge Ronald Lee Gilman ruling for the ACLU; and appellate court Judges Alice M. Batchelder and Julia Smith Gibbons ruling against the ACLU.

I'm sure you're already way ahead of me, so here is the answer:

• Anna Katherine Johnston Diggs Taylor: appointed by Jimmy Carter in 1979;
• Ronald Lee Gilman: appointed by Bill Clinton in 1997;
• Alice M. Batchelder: appointed to the district-court bench by Ronald Reagan in 1985, elevated to the appellate court by George H.W. Bush in 1991;
• Julia Smith Gibbons: appointed to the district-court bench by Ronald Reagan in 1983, elevated to the appellate court by George W. Bush in 2001.

So for anyone who is still unclear about the monumental importance of presidential judicial nominations...

This isn't the end of the issue; there are other suits, and no circus court has yet ruled on the merits of this case or any of the others:

A number of other challenges to the program have been consolidated before a federal judge in San Francisco, and the federal appeals court in California, the United States Court of Appeals for the Ninth Circuit, will hear an appeal from one of the judge’s preliminary rulings next month.

Some plaintiffs in that case contend that they can prove standing even under the Sixth Circuit majority’s analysis. Those plaintiffs, an Islamic charity and two of its lawyers, say they have seen a classified document confirming that their communications were actually intercepted.

I'm not sure any of these plaintiffs will be found to have standing, even those who claim they've "seen" evidence, unless they can produce that evidence in court (which -- reading between the lines -- it appears they cannot). Regardless, I still have confidence that when the Supreme Court finally rules on those merits, they will find that the president and Commander in Chief has plenary authority to order survillance of enemy combatants.

Unless, of course, flibbertgibbit Justice Anthony Kennedy has another bad robe day.

Hatched by Dafydd on this day, July 6, 2007, at the time of 1:53 PM | Comments (4) | TrackBack

June 29, 2007

Will Anthony Kennedy Rule for al-Qaeda?

The abrupt and unexpected reversal by the Supreme Court today, deciding to rehear arguments about (essentially) whether to grant habeas corpus rights to unlawful enemy combatants detained abroad, hinged on the vote-switch by Justice Anthony "Weathercock" Kennedy. (Incredibly liberal Justice John Paul Stevens also switched, but his vote against was an aberration from the git-go; he was always going to switch if his would be the necessary fifth vote.)

But the impact may be profound -- and dreadful. As five justices had to vote to rehear, this may mean five justices (a majority) now buy the Democrats' central point: that enemy combatants must be treated the same as carjackers and check kiters: granted the full panoply of rights, lawyers, civilian evidentiary hearings, and of course, the ability to subpoena heavily classified documents and to yank top military commanders from the front line, during a war, to sit for weeks in a courtroom being cross-examined by an al-Qaeda attorney on future and ongoing American military plans and operations.

Or, if the subpoenas are rejected, to force the release of terrorist masterminds back into the outside world, where they will instantly start plotting more terrorist attacks (laughing at imprudent Western "jurisprudence" all the way).

From the New York Times:

The issue in the case the court agreed to hear today is whether the Congress can strip the federal courts of the power to hear habeas corpus cases filed by Guantanamo detainees. In legislation passed after last June’s Supreme Court ruling, Congress included a provision barring such suits by the detainees....

The Justice Department has argued that the nation’s defense would be imperiled if habeas corpus cases can be used by federal judges to second guess military officials’ decisions to detain enemies during wartime.

Under the theory of the most liberal members of the Court (and the entire leadership of the Democratic Party), we wouldn't be able to hold any prisoners at all... even on the battlefield. If habeas is granted to prisoners held in Cuba -- not American soil -- then it's granted to all prisoners held anywhere, in any country, so long as Americans have any control or access.

This should be fairly clear: Via "judge shopping," lawyers for detainees -- wherever held -- can always find a judge who is sympathetic to the plight of terrorists unable to ply their demonic trade against Americans... or at least completely unsympathetic to any coercive means the military might use to stop them, which amounts to the same thing.

Such a judge can order the production, in federal court, of every document demanded by the defense, including classified material detailing ongoing intelligence operations (which resulted in the defendant's capture but might have been "erroneous"). And the judge can order that "critical witnesses," such as Gen. David Petraeus (Commander Multinational Force - Iraq) and Adm. William Fallon (Commander CENTCOM), be produced in that same stateside court to fully explain details of ongoing military operations... operations that resulted in the capture of the defendant (relevance!) and perhaps future planned military operations that might be affected by intelligence we gather from the defendant (even more relevance!)

Additionally, under the Fifth Amendment, any detainee could refuse to answer questions or "be a witness against himself," and there woudn't be a thing we could do to force him. After all, if you can't force an American citizen charged with pickpocketing or dealing crack to answer questions, what possible justification can there be to force a Yemeni terrorist captured in Qatar by the CIA and held in Kuwait to answer questions? Certainly not without an al-Qaeda minder -- sorry, I meant "attorney" -- being present!

Simply put, unelected, lifetime-appointed civilian judges would take control of all prisoners captured by the military, the CIA, or even foreign intelligence agencies, if they're unwise enough to allow us access. Welcome to the wonderful world of Democrats.

I'm nervous about this hearing for two reasons:

• In general, I'm skeptical that the Court will ever finally rule that it doesn't have jurisdiction in such a momentous issue; power seeks more power.
• I'm especially skeptical when a majority of justices votes to rehear an issue; why would Kennedy vote to rehear this case -- and then vote to decide it the way it was originally decided back on April 2nd? I have the terrible feeling that Kennedy switched his vote on rehearing because he was persuaded, in backroom discussions with the Court liberals, to switch his vote -- on the underlying question, I mean.

What is really at stake here is whether the Constitution really means what a plain reading of its text indicates it means. The Constitution says (article III, section 2):

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Per above, Congress spoke: It made an exception to the Court's jurisdiction, just as the Constitution allows.

But the Court seems to interpret this constitutional provision as actually meaning that the Supreme Court has whatever jurisdiction it chooses to have, and to hell with the Congress. Evidently we have three coequal branches of government, but one is more coequal than the others.

What next? Will the sheep be trained to chant "five robes good, four robes bad?"

Hatched by Dafydd on this day, June 29, 2007, at the time of 3:24 PM | Comments (5) | TrackBack

June 25, 2007

Free Speech for Me AND for Thee

The realignment continues on the ship of state (that sounds weird somehow, but I'm too lazy to fix it). Today, the Supreme Court of the United States (SCOTUS -- which also sounds weird and vaguely salacious) cast out the most offensive provision of the McCain-Feingold Bipartisan Campaign Reform Act of 2002... the signing of which, and continued defense of, is the worst decision ever made by President Bush, a president I otherwise mostly admire.

The BCRA set contribution limits on individuals as well as corporations and -- in its most controversial section -- banned "issue ads" within 60 days of an election if they even so much as mentioned a candidate's name:

The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state's two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush's judicial nominees.

Feingold, a co-author of the campaign finance law, was up for re-election in 2004.

The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have contended they are exempt from certain limits on contributions in federal elections.

The Court ruled today that preventing the airing of ads violated the First Amendment's freedom of speech provision:

The decision upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections. The law unreasonably limits speech and violates the group's First Amendment rights, the court said.

"Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election," Chief Justice John Roberts wrote for the majority. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

Politically, the ruling is a horrendous body blow to the already faltering campaign of Sen. John McCain (R-AZ, 65%), one of the two eponymous senators who introduced the bill in the Senate (the other is Russell Feingold, D-WI, 100%), widely considered the most liberal fellow in the Senate. McCain seems to be enraged at the Court, perhaps seeing it as a personal insult to him that may require the Chief Justice to defend it with his body upon the field of honor:

The decision is a setback for Sen. John McCain, R-Ariz., who helped write the 2002 campaign finance legislation with Feingold that contained the advertising provision. McCain, now a presidential candidate, has come under criticism from conservatives for attempting to restrict political money and political advertising.

"It is regrettable that a split Supreme Court has carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election," McCain said in a statement. [That "narrow exception" appears to refer to the First Amendment to the United States Constitution, with which Sen. McCain takes issue.]

The court's decision, however, has no effect on the more far-reaching component of the campaign finance law - it's ban on the ability of political parties to raise unlimited and unrestricted amounts of money from unions, corporations and wealthy donors.

"Fortunately," McCain said, "that central reform still stands as the law."

Happily, Mitt Romney appears to have been the first Republican presidential candidate to applaud the demise of the odious "issue-ad" prohibition of McCain-Feingold.

I call this excellent ruling a realignment because the Court's reversal of a central provision of its December, 2003 ruling upholding the BCRA, McConnell v. Federal Election Commission, 540 U.S. 93 (2003), can be traced to one key event: President Bush nominated Samuel Alito to replace Justice Sandra Day O'Connor.

On the core findings in McConnell v. FEC, Justices O'Connor, Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg, and David Souter upheld all the most important elements of the law; the dissenters were Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Chief Justice William Rehnquist.

In today's ruling, every justice still on the Court voted the same as he or she did last time; Chief Justice John Roberts voted against the BCRA and in favor of freedom of speech, just as Rehnquist did. The only difference was that Justice Alito reversed Justice O'Connor's vote from pro-BCRA to anti.

I believe this signals a realignment of the Court, with a new 5-4 majority favoring more freedom for the individual at the expense of government control, except where the government can show a dire national emergency -- as with cases involving elements of the war against global jihadism -- or when the government stands "in loco parentis" of schoolchildren. And I think this ruling bodes very ill for those compulsive authoritarians, such as Sen. Diane Feinstein (D-CA, 90), who want to revive the "Fairness Doctrine": Surely the same five justices will agree that forcing a TV or radio show to broadcast political opinions contrary to those they hold, just to maintain a federally directed "balance of opinion," is also a violation of the fundamental (and constitutional) freedom of speech.

Asked if she would revive the fairness doctrine, which used to require broadcasters to present competing sides of controversial issues, Feinstein said she was "looking at it."

"I remember when there was a fairness doctrine," she said, "and I think there was much more serious correct reporting to people."

Yes. As "Uncle" Walter Cronkite's reporting of the Tet Offensive demonstrates.

In a shocking turn of events, the New York Times -- which, as a print newspaper, was exempt from the provisions of the BCRA on grounds of freedom of speech, and which thus was the major player in the news medium that held a monopoly on issue advertising during the last 60 days of an election -- bemoans the Court's decision today allowing broadcast media that same right:

By 5 to 4, the court ruled that an anti-abortion group in Wisconsin should have been allowed to broadcast ads before the 2004 race for the United States Senate in that state. In its ruling today, the high court opened a significant loophole in the Bipartisan Campaign Reform Act of 2002, familiarly known as the McCain-Feingold law, to curb donations to campaigns.

The "loophole" in question would appear to be that pesky First Amendment again... "free speech for me but not for thee." The Times continues, giving the gavel over to dissenting Justice David Souter:

In the case decided today, Federal Election Commission v. Wisconsin Right to Life, No. 06-969, Justice David H. Souter wrote a dissent that Justices John Paul Stevens Ruth Bader Ginsburg and Stephen G. Breyer joined.

“After today,” the dissenters said, “the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.”

The dissenters expressed dismay over today’s ruling and said it could portend a new wave of public cynicism about the role of big money in politics.When the case decided today was argued on April 25, Solicitor General Paul D. Clement, arguing on behald of the election commission, said that to find that the Wisconsin ads should have been allowed to run would leave the McCain-Feingold law “wide open.” Justice Breyer predicted then that a ruling like today’s could mean, in effect, “Goodbye, McCain-Feingold.”

Ooooh, if only! But two of the majority justices -- the two new guys -- decided to act like judicial conservatives who believe in judicial restraint, and they limited their decision to upholding the actual judgment of a three-judge panel of the D.C. Circus Court that heard the case. Rather than declare the entire provision unconstitutional, as Scalia, Kennedy, and Thomas did in a separate opinion, Roberts and Alito held only that the panel was right to rule that the "issue ads" of Wisconsin Right to Life, Inc. did not constitute "express advocacy," as banned by the BCRA.

(I think this is what lawyers call an "as applied" challenge, meaning that the court does not decide whether the law itself is unconstitutional but rather whether it was wrongly applied in the particular case.)

The refusal of Roberts and Alito to go as far as Scalia, Kennedy, and Thomas does not necessarily mean they disagree with the latter's position: Roberts' and Alito's understanding of judicial restraint may mean that they simply refuse to go beyond the particulars of the case to make sweeping judgments where none is required. In a clean challenge to that provision of the BCRA, they might very well vote to strike it down.

Sadly, the Bush administration doubled down in this case, filing an amicus curiae brief urging the Court to uphold the FEC's authority to ban the ads. Thus, the Bush psychodrama continues... although it's worth noting the administration's consistency: They support McCain-Feingold even against their own conservative Republican supporters... Bush is an equal-opportunity free-speech denier.

Nevertheless, I now expect to see a flurry of conservative, 5-4 decisions emanate from the penumbra of this Court, as the judicial realignment proceeds apace. Keep watching the skies!

Hatched by Dafydd on this day, June 25, 2007, at the time of 2:33 PM | Comments (19) | TrackBack

June 11, 2007

Be Sure You're Sitting Down for This...

Today, a three-judge panel of the 4th circus court of appeals ruled that the commander in chief (that would be George Bush) can no longer hold an enemy combatant for the duration of hostilities... which would come as quite a shock to previous wartime presidents (if Franklin Roosevelt were alive today, he would be spinning in his grave).

Instead, two of the three judges -- Diana Motz and Roger Gregory -- agreed with each other that in future, enemy combatants captured or held in the United States should be tried in the normal criminal court system, just like shoplifters and carjackers, so that al-Qaeda sleeper-cell operatives:

• Can have jihadist lawyers of their choice;
• Can prevent any and all interrogation or intelligence gathering by anyone, because that would, of course, queer the criminal case against him and likely trigger an immediate release under habeas corpus;
• Can subpoena all relevant or irrelevant national-security documents as part of their “defense;”
• And can summons the entire command corps of Multinational Force - Iraq, all overt and covert CIA agents working in counterterrorism, and the President of the United States as "witnesses."

If the government fails to produce any of these demands, the al-Qaeda suspect must, one presumes, be acquitted and set free. Sounds fair to me.

But here is the shocker: The lone dissenting judge, Henry E. Hudson, was appointed by George W. Bush.

Of the two judges who joined the majority opinion, Motz was appointed by President William Jefferson Clinton and confirmed by the Senate in 1994, when the Democrats still controlled that body.

The other, Gregory, was given a recess appointment by Bill Clinton in the year 2000, after the Republican Senate refused to confirm him (in the waning days of the Clinton presidency; after the election; after the long count; after Vice President Gore conceded; as Clinton was trying to stack the courts).

Then in 2001, when the Senate was 50-50, and Bush was having trouble with the Democrats refusing to allow any conservative judges through, the president was forced to cut a deal with them (in May of 2001 -- remember that?) As Byron York at the National Review explains things:

After weeks of threats from Senate Democrats, this afternoon George W. Bush will send to the Senate the names of eleven nominees to the federal circuit courts of appeal. The president's choices -- he picked two Democrats, both Bill Clinton nominees, as well as several solid conservatives -- reflect the White House's understanding of how difficult it will be to confirm judges who are opposed by key Democrats in the 50-50 Senate.

First the Democrats. Bush will renominate Roger Gregory to the Fourth Circuit Court of Appeals. Gregory was originally nominated by Bill Clinton, who used a recess appointment to place him on the court after the Senate refused to act on the nomination. Democrats have made Gregory a cause celebre in recent months, alleging that Republican opposition to Gregory, who is black, was racially motivated [Bush having such a well-documented hatred of blacks]. They have aggressively pushed Bush to name Gregory, a move that was also approved by home-state senators John Warner and George Allen, both Republicans, and by Virginia governor James Gilmore, head of the Republican National Committee.

So the lone Republican judge sees the president as less of a threat to the nation than al-Qaeda, while the two Democrat judges are utterly unserious about fighting the war against global jihad: They want it "fought" as a purely criminal matter, so that it will not be fought at all.

I know you are stunned by this turn of events. I mean, who would have thunk it?

Hatched by Dafydd on this day, June 11, 2007, at the time of 10:56 PM | Comments (15) | TrackBack

June 4, 2007

What's In a Label? Everything, It Would Seem

In what AP calls "a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court" -- but which rational observers would call "a shockingly thin example of dismissal by technicality" -- a military judge has dismissed murder charges against a detainee at Guantánamo Bay... because the military's combat status review tribunal only classified him as an "enemy combatant," rather than as an "unlawful enemy combatant":

A military judge on Monday dismissed terrorism-related charges against a prisoner charged with killing an American soldier in Afghanistan, in a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court.

The chief of military defense attorneys at Guantanamo Bay, Marine Col. Dwight Sullivan, said the ruling in the case of Canadian detainee Omar Khadr could spell the end of the war-crimes trial system set up last year by Congress and President Bush after the Supreme Court threw out the previous system. The ruling immediately raised questions about whether the U.S. will have to further revise procedures for prosecuting prisoners, leading to major delays. [The original law was thrown out by the Supreme Court's Hamdan decision, but not because of any irregularities in the definition of "enemy combatant" or the operation of the status-review tribunals -- the Mgt.]

But Omar Khadr, who was 15 when he was captured after a deadly firefight in Afghanistan and who is now 20, will remain at the remote U.S. military base along with some 380 other men suspected of links to al-Qaida and the Taliban.

And why didn't they label Khadr an "unlawful enemy combatant?" Because the term wasn't available as a separate category under the original law.

However, the status-review tribunals used the same criteria for the designation of "enemy combatant" as they would now use for the designation "unlawful enemy combatant." The term has changed, but the definition is the same:

The judge, Army Col. Peter Brownback, said he had no choice but to throw the Khadr case out because he had been classified as an "enemy combatant" by a military panel years earlier -- and not as an "alien unlawful enemy combatant."

The Military Commissions Act, signed by Bush last year, specifiies that only those classified as "unlawful" enemy combatants can face war trials here, Brownback noted during the arraignment in a hilltop courtroom on this U.S. military base.

All 80 of the detainees who are slated for military tribunals have that same label; thus, military judges will almost certainly dismiss all the other cases as well on the same grounds. They won't even bother to hear any evidence -- as they did not in the Khadr case: They will simply declare they have no jurisdiction and dismiss the charges.

The chief defense attorney, Col. Sullivan, goes far beyond his duty to defend his clients; he says that this decision proves the entire system of military tribunals is "a system of justice that does not comport with American values" and that we should scrap the entire thing. If by "American values," he means really recent ones where decisions turned on "what the meaning of 'is' is," maybe he's right; if so, then the military too has lost its moral compass (as we already knew about the State Department and its ugly offspring, the CIA).

Here is the situation, from what I can determine:

1. Under the recently enacted law, prisoners can only be tried at military tribunals if they are declared by a status-review tribunal to be "unlawful enemy combatants;"
2. The status of "unlawful enemy combatant" requires a number of criteria: A, B, C, D;
3. The earlier status-review tribunal determined that 80 of the 380 prisoners at Gitmo statisfied criteria A, B, C, and D; the other 300 or so did not;
4. But they used the term "enemy combatant" for those 80 prisoners, per the law they operated under, rather than "unlawful enemy combatant." The current law had not yet been written, and the status-review tribunals had no crystal ball: They did not realize they would have to have used a different term, after the original law was thrown out and rewritten by Congress;
5. ...Therefore, all the cases must be dismissed for lack of jurisdiction!

This is a perfect example of mistaking the map for the territory; it's like sitting down in a fancy restaurant -- and devouring the menu! The label itself is irrelevant; you can call them "sunshine needlepoint combatants," so long as you require the same criteria as for "unlawful enemy combatants."

The law says that only those persons who are qualified to be designated as unlawful enemy combatants can be tried; the clear intent and substance of the law is not affected by whether the earlier tribunal used the same words as the later-enacted law, but by whether they used the same standards... and Judge Brownback should jolly well understand that.

All he needed to do was check that the criteria used by the earlier tribunals to declare someone an "enemy combatant" are the same as those that used today to declare someone an "unlawful enemy combatant." Maybe this is the non-lawyer in me; but it was utterly clear to everyone, including the detainees, that the entire purpose of the status-review tribunal was to determine whether they were bad enough to warrant trial by a military tribunal.

The detainees knew exactly what that meant: They knew that if they were found to be "enemy combatants," they would be tried by a military court. Now the defense argues -- and the judge, Army Col. Peter Brownback, seems to have independently argued himself into believing -- that the trivial difference in words violates the rights of the detainees, because they didn't know they were in jeopardy of trial if found to be enemy combatants... which was the very term used at the time to designate those detainees eligible for trial!

The idea is that, if someone doesn't know a hearing can result in him having to stand trial, he might not put up a vigorous defense; thus, he might be tricked into allowing himself to be (more or less) "indicted" without a fight. But for God's sake, everybody knew that was the purpose of the status-review hearings. Everybody. Both the detainees and their military lawyers knew. The tribunal itself knew. Even the media knew. Nobody was caught by surprise here.

Here's the analogy:

This is a perfect example of why normal people hate and despise trial lawyers as a class.

I have a thought. I realize this may be somewhat radical, even crazy, but...

The status-review tribunals almost certainly used, as their standard, the very criteria now required for "unlawful enemy combatants" -- that was, after all, the entire purpose of the status-review tribunals; and the fact that they only applied the "enemy combatant" label to 20% of the prisoners makes clear it was a pretty strict standard.

So why doesn't -- now don't come after me with pitchforks and torches! -- why doesn't President Bush, as Commander in Chief, simply direct the tribunals to look at the casefiles of each of the 80 prisoners determined to be "enemy combatants," check to see that the standards required for that designation match those required for the new designation of "unlawful enemy combatant," and then just change the stupid label?

Problem solved? Oh, no, of course not; it would have to go back to the Supreme Court, wouldn't it? After all, the burning question we face anent these men is what label was used -- not what criteria were used for that label.

I'm starting to agree with Chief Defense Attorney Sullivan (a colonel in the United States Marine Corps, sadly): "[this ruling is] the latest demonstration that this newest system just does not work." Evidently, not even the military itself can put terrorists on trial without getting tangled in absurdist definitions and technicalities that have no relevance to the actual charges... or to fighting terrorism and defending the United States.

Hatched by Dafydd on this day, June 4, 2007, at the time of 2:08 PM | Comments (6) | TrackBack

April 18, 2007

Striking a Blow for Civilization

As many of you know -- though for others, it will be a killer shock that will send you reeling away, screaming dark imprecations at me, never to return to Big Lizards, halving out readership, and destroying the entire franchise... huh, maybe I shouldn't tell you!

Oh heck. Full disclosure, blah.

As many of you know, both lizards are somewhat pro-abortion-rights, albeit Sachi much more reluctantly than Dafydd. So I thought you might appreciate the thoughts of admittedly pro-abortion-rights commentators on today's excellent Supreme Court decision upholding the federal ban on the most gruesome and barbaric "medical" procedure allowed (until today) in contemporary America.

The cases decided in one decision today are Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.

Shades of grey

First, let me clarify where my abortion tolerance begins and where it ends. It is impossible to hold any position at all on abortion without first holding a position on when, not human life, but human personhood begins. Some folks may not even recognize that they have such a position, but they do; they're just remarkably unself-aware.

1. Some believe human personhood begins at the moment of conception. Thus, any clump of cells that will develop into a human being, if left to prevailing natural processes, is necessarily a human person at all points of that process... right from the very beginning.
2. Others believe that, while a human zygote (a fertilized human egg) is unquestionably the first stage of a human being, it does not become a human person -- with attendant rights, duties, and protections -- until later in the process. They point to the immense structural differences between a zygote, an embryo, a foetus, and a late-term foetus and argue that personhood depends upon some element of that pre-natal development.

What follows is just my personal belief and isn't part of the mainline argument of this post; I'll indent it, and you can skip ahead without losing the thread.

All right, back to today's Court decision upholding the ban on partial-birth abortions.

Lovecraftian horror

I refuse to use the deliberately obscurantist medical circumlocuation, "intact dilation and extraction," the very purpose of which is to conceal what is actually done. A person would have no idea from this title that after dilating the cervix and extracting the body of the baby, the real work begins. I'll let Wikipedia describe what happens next, in their (generally supportive) article on the subject:

An incision is made at the base of the skull and a suction catheter is inserted into the cut. The brain tissue is removed, which causes the skull to collapse and allows the fetus to pass more easily through the birth canal. The placenta is removed and the uterine wall is vacuum aspirated using a suction curette.

All this while everything except for the head is dangling outside of the mother's birth canal. So I think "partial-birth abortion" is the most vivid and accurate name for the horrific procedure.

Solomonic

Obviously, since I completely oppose late-term abortions (after cortical activation), I cannot help but applaud a Court decision that bans one form of late-term abortion, albeit a rare one. But many partial-birth abortions are performed earlier in the pregnancy, at a time when I do not categorially oppose abortion. So why do I oppose partial-birth abortions, even in the second trimester?

For me, this is the tipping point: Suppose the doctor slipped up and allowed the head to emerge as well -- but then continued with the "abortion" anyway: He just went ahead with the incision and the suction catheter and removing the brain tissue of a "foetus" that was actually lying in the mother's lap. What would happen then?

I believe he would be arrested and tried for murder... with special circumstances. The doctor would have delivered a live baby -- and calmly killed it in full view of its mother. At an absolute minimum, it should be considered "depraved indifference to human life;" but I think murder charges would be filed. The DA would call it infanticide, and nearly everybody in the country would agree.

The distinction between infanticide and legal abortion cannot be four inches movement down a tube.

For me (see above), the second trimester is a grey area: the foetus has some distinctly "baby-like" features, while other features (mostly in the higher brain) are not well developed. It's not yet a person, but it's getting somewhat close. Similarly, at the very end of life, a person can lose so much of what makes him a person that decisions about life and death similarly become murky: I support withdrawing life support under some circumstances; but I totally opposed starving Terry Schiavo to death -- and I still believe it was immoral, despite clear post-mortem evidence that Schiavo was not aware enough to notice.

A lot can tip the scales when in the grey zone. And one very strong distinction to me is between a baby that is born and a foetus that is still in the womb.

By the very act of inducing labor and allowing it to proceed virtually to the point of birth, the doctor has tipped the scales from allowable abortion to criminal infanticide. The foetus has become an independent baby... at least as far as this one abortion-rights supporter believes.

As bad as the more common form of second-trimester abortion is, it does not even begin to approach the Nazi-like, nausea-inducing horror of partial-birth abortion. (In dilation and evacuation, the foetus is killed and dismembered inside the womb, then the individual pieces are extracted.) D & E is itself pretty gruesome to contemplate; but there is no point at which the dependent foetus becomes, for all intents and purposes, an independent, delivered baby.

The road not taken

Finally, there is the question of precedent. Both Sens. Hillary Clinton (D-Carpetbag, 95%) and Barack Obama (D-IL, 95%) make a big to-do about the "departure" from Supreme Court precedent of this ruling:

Clinton:

This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman's right to choose and recognized the importance of women's health.

Obama:

I strongly disagree with today's Supreme Court ruling, which dramatically departs from previous precedents safeguarding the health of pregnant women.

To which I reply -- so what? Even if it's true that Gonzales v. Carhart/Planned Parenthood "departs" from precedent -- which claim itself is questionable -- why should we care? The Court is not bound by any previous court rulings... not even its own.

It has the power to overturn itself, as it has many times in the past; for example, when Plessy v. Ferguson, 163 U.S. 537 (1896), upholding "separate but equal" racial segregation in the public schools, was overturned 58 years later in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Does any respectable lawyer, Democrat or Republican, complain that Brown didn't follow the racist precedent of Plessy?

For that matter, did Hillary Clinton object when the Court decided Roe v. Wade, 410 U.S. 113 (1973) -- thus overturning 170 years of Supreme Court precedent? Since the beginning of the very idea that the Court could overturn federal laws (Marbury v. Madison, 5 U.S. 137 in 1803), no United States Supreme Court had ever found a constitutional right to an abortion.

It doesn't even follow the precedent of Griswold v. Connecticut, 381 U.S. 479, 1965, as the Roe decision claimed; since the "right of privacy" doesn't have any obvious connection that I can see to the right to kill a foetus.

In 1973, the year of Roe v. Wade, Hillary Rodham was a newly minted attorney -- though I'm not sure she was yet an attorney at law. So she must have been fascinated by that Court decision. Yet I will eat a bug if anyone can find a Hillary Clinton quotation complaining that Roe v. Wade "marks a dramatic departure" from Supreme Court precedent.

(In 1973, Barack Obama was 12 years old, so I don't hold him to the same standard. But surely he studied Roe v. Wade at Harvard Law in the late 80s. If he ever objected to Roe because it "dramatically departs from previous precedents," it certainly hasn't come to my attention.)

Thus, the entire argument against today's decision, that it violates precedent, is nothing but a shibboleth: It's an infallible guide to those who vehemently oppose Gonzales vs. Carhart/Planned Parenthood. It is an ersatz argument that needn't be further addressed.

Ergo

So yes, I absolutely and enthusiastically applaud this Court decision, in which we managed to hold onto Justice Anthony Kennedy (who wrote the decision) and the four conservative members -- Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. It's the best news to come out of the Court since they prevented Al Gore from suing his way into the White House.

I rarely say this, but... three cheers for Anthony Kennedy!

Hatched by Dafydd on this day, April 18, 2007, at the time of 4:35 PM | Comments (34) | TrackBack

February 20, 2007

D.C. Circus to Detainees: Drop Dead

Perhaps the most important ruling of the Bush era (Boumediene v. Bush) was just released today: the D.C. Circus has ruled, by a 2-1 majority, that unlawful enemy combatants detained by the military do not have the right to appeal to the civilian courts to be released:

The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that civilian courts no longer have the authority to consider whether the military is illegally holding the prisoners - a decision that will strip court access for hundreds of detainees with cases currently pending.

"The arguments are creative but not cogent. To accept them would be to defy the will of Congress," wrote Judge A. Raymond Randolph in the 25-page opinion, which was joined by Judge David B. Sentelle. Both are Republican appointees to the federal bench.

Judge Arthur Raymond Randolph was appointed by the first President Bush in 1990; Judge David Sentelle was appointed by Ronald Reagan in 1985. The third member of the panel (who dissented with the ruling) was Judge Judith Ann Wilson Rogers, was appointed by President Clinton in 1993.

The New York Times adds a few interesting fillips:

The court’s majority, citing Supreme Court and other precedent, held that the right of habeas corpus does not extend to foreign citizens detained outside the United States -- the prisoners covered by the new law. A lower court in December followed the same logic to the same conclusion in a related case, involving Salim Ahmed Hamdan, whose earlier appeal to the Supreme Court had led to the overturning of the previous Congressional attempts to limit the prisoners’ avenues to the federal courts.

The decision today, Lakhdar Boumediene v. George W. Bush, involved a consolidation of the cases of 63 detainees, all from foreign countries, who had sought review in two separate federal district courts in Washington. One federal district judge had ruled in 2005 that she had the authority to consider the cases, while another judge ruled that he did not, and granted the administration’s motion to dismiss the cases.

In the earlier case referenced above, Hamdan v. Rumsfeld, Salim Hamdan petititoned for a writ of habeas corpus (seeking release) last December to D.C. District Court Judge James Robertson; but under the new Military Commission Act, he denied the petition.

Robertson, appointed by Clinton in 1994, had granted Hamdan's first habeas corpus petition in 2004. The decision was overturned by a three-judge panel of the D.C. Circuit (which included then-Judge John Roberts) in 2005; but the Supreme Court overturned the D.C. Circuit.

Today's ruling in Boumediene v. Bush is only a way-station en route to the Supreme Court, where it will all come down to a single justice: Anthony Kennedy, who, in the Hamdan case (Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2006), voted with the liberal justices John Paul Stevens, Ruth Bader Ginsberg, Stephen Breyer, and David Souter to strike down the earlier version of President Bush's military commissions, overturning the Roberts (not Robertson) decision of the D.C. Circuit.

(Chief Justice John Roberts recused himself from Hamdan, because he had ruled in the appellate court case before being nominated to the Court; thus, Hamdan was decided by 5-3 instead of 5-4.)

Justice Kennedy joined Justice Stevens' opinion only in part: he agreed that the Supreme Court had jurisdiction, and he agreed that the military commissions lacked constitutionality -- primarily because they were set up entirely by the executive branch of government. Kennedy left the door hanging wide for pretty much the same commissions (with some cosmetic changes) if they were enacted by Congress... which they were last October, as perhaps the last major legislation of the 109th Congress.

Thus, it's reasonable to hope that Kennedy may well uphold Boumediene, now that Congress has spoken. His main concurrance with Stevens was that, since the commissions were not formed by Congress and also differed from the military's procedure in the case of courts-martial, they were not "regularly constituted courts," as required by the Third Geneva Convention, Article 3, section (d), which prohibits --

-- the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

But even here, Kennedy dissented in part with the latter's extended exegesis on the Geneva Conventions, disagreeing with Justice Stevens whether those "indispensible" "judicial guarantees" gave a detainee the right to see all the evidence against him -- including highly classified information that would reveal intelligence methods and assets. Stevens and the other three liberal justices appear to want detainees to have all the same protections that would apply to an American gang-banger accused of carjacking or pickpocketing.

The dissent by Judge Rogers argues that the military commissions are unconstitutional because they restrict habeas corpus petitions and because they might include evidence derived from what she calls "torture." From the Times article:

In a dissenting opinion, Judge Judith W. Rogers said that the Military Commission Act had violated the constitutional provision that restricts the suspension of the writ of habeas corpus. She reasoned that the suspension clause limits Congressional powers, rather than conferring a right on the accused.

“Prior to the enactment of the Military Commissions Act, the Supreme Court acknowledged that the detainees held at Guantánamo had a statutory right to habeas corpus,” Judge Rogers wrote. “The MCA purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension.”

But the constitutional clause in question, Article I section 9, obviously can only apply to persons under the jurisdiction of the Constitution. Lakhdar Boumediene is not a citizen or resident of the United States, was captured abroad, and has never been held on U.S. soil. The only nexus to America is that he is guarded by U.S. forces.

He clearly is not subject to the protections of the United States Constitution... unless Rogers would also argue that U.S. civilian courts have jurisdiction over Iraqi prisoners held by an Iraqi Army unit that happens to include a couple of embedded U.S. Marines.

From AP:

"District courts are well able to adjust these proceedings in light of the government's significant interests in guarding national security," wrote Rogers, a Clinton appointee. "More significant still, continued detention may be justified by a CSRT on the basis of evidence resulting from torture."

Despite Rogers' dissent, this ruling is an excellent step towards restoring judicial sanity to the wartime powers of the president. Clearly, we have always in the past believed that enemy combatants can be detained indefinitely ("for the duration of hostilities"); there is no reason why the civilian courts, which have never been involved in such decisions, should suddenly have jurisdiction over POWs, whether lawful combatants -- enemy soldiers -- or unlawful combatants, non-military, ununiformed spies, saboteurs, and terrorists.

Let's hope that Justice Kennedy is now satisfied that the military tribunals are "regularly constituted," and we can get on with the job of fighting the war against global jihadism.

Hatched by Dafydd on this day, February 20, 2007, at the time of 4:24 PM | Comments (4) | TrackBack

December 17, 2006

The World Turned Rightside Up

You will all recall -- as I'm certain you've memorized every Big Lizards post by now -- and if you haven't, how do you expect to pass? -- that we earlier blogged about the stunning instance of Clinton appointee Judge James Robertson, the judge who got the Hamdan case rolling in the first place, throwing out the sequel on the grounds that, according to the Military Commissions Act of 2006, the federal courts no longer had jurisdiction over enemy-combatant detainees.

In other words, doing the right thing according to the principle of judicial restraint. It was the world turned upside-down!

Well, the world has righted itself: for now, another different Clinton judge, U.S. District Judge Jeremy Fogel ("the old Fogel," we called him back in February) has used the flimsiest of excuses to find California's (and nearly every other state's) method of execution, lethal injection, "unconstitutional." Fogel held that it violated the Eighth Amendment stricture that "cruel and unusual punishments [shall not be] inflicted."

We previously covered this same case in a number of posts:

1. If I Should Ouch Before I Die
2. Michael Morales Dead Pool
3. Doctors Overturn Death Penalty
4. The Old Fogel Has Gotten His Wish

The verdict was expected, natch; back in February, the judge did everything but send spam-mail to the media explaining how he was going to rule, no matter what the evidence.

If you want a detailed analysis of just what's wrong with the judge's decision, you should read Patterico; he's one of those lawyer types, and he can give you all the particulars. But I'm here to give you the view of the ordinary guy who doesn't have the right to write "Esq." after his name (except in the Dutchy of Occulisia, where I'm actually a Peer of the Realm).

So to boil down a nutshell, the judge held that lethal injection was "cruel and unusual" because of the theoretical possibility that some condemned murderer may ouch before he dies:

Today, Fogel said "anomalies in six execution logs raise substantial questions" about whether some inmates "may have been conscious when" the second or third drugs were injected.

Fogel said that "substantial questions" had been raised by the records of previous executions in the state and that the California Department of Corrections' "actions and failure to act have resulted in an undue and unnecessary risk of an 8th Amendment violation."

That is, we don't really know whether it actually happened, but it's just possible that some prisoners might have felt some pain during their executions, in the few minutes before they died.

Actually, it's even worse. The judge tried to conceal his ill-shaped and gargantuan agenda behind a veneer of reasonability by saying that the state could skate -- if they would only adhere to a few simple protocols during executions (from our previous post, The Old Fogel Has Gotten His Wish, linked above):

In the last installment, the court-appointed anesthesiologists point-blank refused to participate in the execution.

The only other option Fogel allowed was to execute Morales by an untried, unapproved overdose of barbiturates. The state planned to do just that before the execution order expired Tuesday at midnight... however, Judge Fogel (a Clinton appointee) then added a new twist: even that lethal overdose must be administered by a doctor, nurse, or medical technician, lest it cause Morales pain:

Prison officials had planned to press forward with the execution Tuesday night using the second option. The judge approved that decision, but said the sedative must be administered in the execution chamber by a person who is licensed by the state to inject medications intravenously. That group would include doctors, nurses and other medical technicians.

To everyone's great and unexpected shock (including Judge Fogel, I'm sure) no such medical personnel were willing to inject the drug. This might have something to do with the fact that the AMA, the American Society of Anesthesiologists, the California Medical Association, and the various professional national and state organizations of nurses and medical technicians all oppose capital punishment -- and have all declared participation by their members in executions to be "unethical," which could lead to the member being subject to disciplinary actions including the loss of his medical license.

What a beautiful Catch-22! The judge says that lethal injection is perfectly all right -- but only if a doctor or other medical professional administers it... knowing that no medical professional would dare do so for fear of having his license yanked. But hey, it's not Judge Fogel's fault; it's not like he set the rules. (Oh, wait, he did; I mean, it's not like he set the rules of the AMA).

Back to the L.A. Times article. This is an odds-on favorite for an issue-analysis Oscar in the category of "Sounds vague but is in fact meaningless":

The ruling means that it is unlikely that there will be any executions in the state in the near future. It was issued shortly after Florida Gov. Jeb Bush declared a halt to executions there in the aftermath of a botched lethal injection execution this week.

The two actions represented a dramatic development in the long-running battle over capital punishment in the U.S. Just a year ago, even the most vociferous opponents of the death penalty would not have expected challenges to lethal injection procedures to have gained such gravity. But the challenges have resulted in stays of execution around the country.

We are to believe that it never occurred to "opponents of the death penalty" that filing for stays of execution around the country -- and judge-shopping for like-minded jurists -- might result in those stays being granted.

Of course, the California Supreme Court did manage to overturn all 61 executions but one during the tenure of Chief Justice Rose Bird (which tenure ended when she and two of her cronies were forcibly removed by California voters); and more recently, after the Ninth Circus Court of Appeals delayed one killer's execution so many times that the U.S. Supreme Court actually issued an injunction against any further stays.

A reasonable person might conclude that you can always find a federal judge who will weep at the sad fate of a mass murderer.

Thus, in this case, the Time's phrase "challenges... have gained such gravity" -- which evokes an image of the entire country collectively drawing breath and consulting its conscience, in light of staggering new evidence -- merely means a single, anti-capital-punishment judge in California made a stupid ruling that has to be dealt with... before the rest of us can get on with the business of ushering the lawless breed out of this world.

Shouldn't take long.

Hatched by Dafydd on this day, December 17, 2006, at the time of 3:34 AM | Comments (6) | TrackBack

December 13, 2006

Clinton Judge Upholds Bush Detainee Policy

In a surprise (to me, at least), President Bush's revamped Military Commissions Act -- passed by Congress and signed by the president, as Justice Kennedy virtually demanded -- has just passed its first hurdle: it was upheld in its first court hearing... by a Clinton-appointed federal district judge! Poor, old Hamdan will likely have to stay in the pokey for the duration.

In fact, Judge James Robertson was not only appointed by President Bill Clinton, not only a former civil-rights activist, he was even confirmed in 1994, while the Democrats still controlled the Senate. And Robertson was the judge who originally ruled in Hamdan's favor, and whose ruling was somewhat upheld by the Supreme Court. But today, he bowed to the obvious:

A federal judge upheld the Bush administration's new terrorism law Wednesday, agreeing that Guantanamo Bay detainees do not have the right to challenge their imprisonment in U.S. courts.

The ruling by U.S. District Judge James Robertson is the first to address the new Military Commissions Act and is a legal victory for the Bush administration at a time when it has been fending off criticism of the law from Democrats and libertarians.

Robertson rejected a legal challenge by Salim Ahmed Hamdan, a former driver for Osama bin Laden whose case prompted the Supreme Court to strike down the Bush administration's policy on detainees last year.

That was the infamous Hamdan case, where four of the nine justices of the Supreme Court -- John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter -- opined that even enemy combatants had to be granted full Geneva-Convention rights -- including the right to refuse to be interrogated.

Fortunately, the fifth justice (Anthony Kennedy) to join the decision that Hamdan's detention was not constitutional without Congressional legislation refused to sign aboard the expanded version of Geneva pushed by the Hamdan Four. He agreed only that Bush could not detain people simply on his own say-so (I disagree, but I don't own a black robe).

Justice Kennedy more or less said that if Congress passed Bush's military commissions into law, Kennedy would vote to uphold it. With that signal, Judge James Robertson upheld the current detention regime of Hamdan:

Hamdan's case was sent back before Robertson, a nominee of President Clinton who was a prominent civil rights advocate in private practice.

Though Robertson originally sided with Hamdan, he said that he no longer had jurisdiction to hear Hamdan's case because Congress clearly intended to keep such disputes out of federal courts. He said foreigners being held in overseas military prisons do not have the right to challenge their detention, a right people inside the country normally enjoy.

Actually, though, that's not true. According to the Justice Department, detainees can challenge their status before a mliitary commission; and if they don't like the decision, they get one bite at the apple to appeal to the D.C. Circus Court of Appeals... then that's it; their decision is final. This is hardly denying unlawful combatants some fundamental right to endlessly abuse the system and interfere with the president's ability to wage war:

"That is more process than the United States has ever provided to enemy combatants in our past conflicts," Blomquist said.

This won't be the last word: Hamdan will of course appeal to the D.C. circuit. But I'd sure rather my side be in the position of having to defend a win than having to appeal a loss!

And there are two other cases currently being considered by the D.C. circuit where I think we are in the position of having to appeal losses; but they were evidently decided either before the MCA passed or at least without considering it... so if this decision is a harbinger, it's a sign of good decisions to come.

Hatched by Dafydd on this day, December 13, 2006, at the time of 4:19 PM | Comments (9) | TrackBack

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