Friday, August 29, 2008

Secretly Shrinking National Security

Concerns over the lingering Gitmo cases expressed by Judge Leon as reported by AP, here.


WASHINGTON (AP) -- A federal judge overseeing cases against dozens of Guantanamo Bay detainees said Wednesday that he fears the public - and the detainees themselves - will be locked out of the courtroom when evidence in the case is scrutinized for the first time.

Hundreds of detainees are awaiting hearings in a Washington federal court in the coming months to determine whether they were properly labeled enemy combatants and imprisoned without being charged.

U.S. District Judge Richard J. Leon, who has said he wants to resolve the 24 cases assigned to him before the next president is sworn in, urged President Bush's administration to find a way for at least part of those cases to be held in public.

"If it can't be done, I have great concern that these hearings will be virtually or exclusively classified, closed to the public and, I might add, to the detainees," Leon said.

Update to Doe privacy/national security appeal

The privacy case appeal, involving the Patriot Act, "national security letters" and judicial review powers, link here, (Doe v Mukasey; How Appealing, Lawdotcom), updating my earlier post, "Secret Government" was heard with skepticism on the part of a panel of 2d Circuit judges this Wednesday.

Excerpts from Lawdotcom:

Judge Calabrese expressed his concern to Assistant U.S. Attorney General Gregory Katsas that such language would permit the issuance of NSLs and gag orders in traffic safety investigations or operations seeking to determine if a state governor is patronizing prostitutes.

"Why isn't the appropriate thing to say that Congress here used, in a First Amendment sense, language that simply goes too far?" asked the judge.

The panel also expressed concern that the statute constrained judges reviewing such gag orders to uphold them unless they had "no reason to believe" any harm would arise from permitting disclosure.

Katsas countered that this standard could be "charitably construed" as "no good reason" and said the FBI's certification process was geared toward counterterrorism and national security concerns.

But Calabrese said he was particularly uncomfortable that gag orders could be certified by a special agent-in-charge, rather than a more senior FBI official.

"A special agent-in-charge is not someone who is directly responsible to the people," the judge said.

The ACLU brought the underlying case on behalf of a small Internet service provider served with an NSL several years ago. Jameel Jaffer, the director of the ACLU's national security project, told the court that gag orders were preventing many opposed to the Patriot Act's surveillance programs from speaking out.

But the judges pointed out that, of more than 40,000 NSLs issued, only three parties had complained about their inability to discuss them.

"Do we have any reason to believe there is anyone out there other than your client who is dying to make a speech about this?" Judge Sotomayor asked.

Tuesday, August 19, 2008

Tax Policy a Crime?

Economic Growth, the lifeblood of the economy, the fountain of youth of the Garden of Eden that we call the economy, is apparently not well served by ripping off the poor after all, via tax cuts for the rich. Sorry about that. I thought otherwise in my youthful days of indiscretion. Although I did have some misgivings that it could really be so.

Read about that here, in TNR. Does the right wing spin machine have a response? Or do they really just love to take candy away from babies? Exactly how stupid do they think the regular working stiff is? Really. Pretty stupid has got to be the answer to that one.

Monday, August 18, 2008

Annual Review, Criminal

For housekeeping purposes and future review and research, here is a link to a "terrific" summary of the USSC term as compiled by Prof. Rory Little of Hasting Law.

Thursday, August 14, 2008

Alice, the Judge and the Constitution

How do Lewis Carroll, Humpty Dumpty, and Alice relate to the law? Check this piece out, by a "rogue" juror who refused to take an oath selected by the trial judge. Excerpt:

The scene in the judge’s robing chambers that day reminded me of a passage in Lewis Carroll’s Through the Looking Glass, where Alice is talking with Humpty Dumpty, the latter having just taken words out of context. In other words, Humpty Dumpty was lying:

"When I use the word," Humpty Dumpty said, in a rather scornful tone, "it means just what I chose it to mean – neither more nor less."

"The question is," said Alice, " whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be the master – that’s all."

Judge Young’s court presumed a world without an objective reality, just like Humpty Dumpty’s worldview.

Friday, August 08, 2008

Hamdan Verdict

Here, is Hirch's (Newsweek) take on the Hamdan verdict. As I've begun to suspect, opinions are written not only by judges, less frequently by lawyers (at least not quickly) and with the most brevity by the media, some in the media. The case is certain to be appealed and has a good chance of being thrown out, as it does not seem clear that driving a car, even carrying a terrorist, is a war crime worthy of much punishment, much less torture.

Why did the administration decide to lead off with this one? Is it the strongest case? Strongest argument for maintaining Gitmo? A risky decision. But that's why I'm not serving in this man's government.
As Matt Waxman, the former Defense Department assistant secretary of detainee affairs, put it to me (the author): "In terms of global perceptions, it's really been the U.S. system that's on trial more than individual terrorism suspects … The government has certainly lost the perceptions battle on this case so far."

Sunday, August 03, 2008

SORNA and the Constitution

Here, at SexCrimes blog by Prof. Corey Young, are an article draft and the first Circuit (8th) decision interpreting the new sex offender federal registration act (SORNA). Prof. Young notes serious commerce clause constitutionality questions with the law and the recent ruling as well.

And here, (at CJLF's Crime and Consequences) we find the following excerpt, describing an examplary incident that demonstrates precisely why the registration laws are nothing more than a feel good, politically correct, ineffective, (and unconstitutional if not un-American) pieces of paper containing worthless ink.
Convicted Sex Offender Strikes Again, Victim Only 16: Angel A. Perez Jr., a 32-year-old convicted sex offender, failed to register his new address with police. He also had several outstanding warrants for larceny, which would have qualified him for diversion programs for "nonviolent" offenders. Now, he's charged with raping a 16-year-old girl in a park near her home, an ordeal that lasted for around an hour, according to Brian Fraga's story for the Standard-Times. Repeat offenders are just that, and the only way to protect society from them is for them to be incarcerated for increasingly longer periods of time.

Friday, August 01, 2008

Government and Secrecy

A good one from New Republic, by Jack Goldsmith (Harvard Law School professor, and former Bush Administration appointee) titled Secrecy and Safety here.

A sample of the analysis:

A root cause of the perception of illegitimacy inside the government that led to leaking (and then to occasional irresponsible reporting) is, ironically, excessive government secrecy. "When everything is classified, then nothing is classified," Justice Stewart famously said in his Pentagon Papers opinion, "and the system b
becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on selfprotection or self-promotion." And he added that "the hallmark of a truly effective internal security system would be the maximum possible disclosure," noting that "secrecy can best be preserved only when credibility is truly maintained."

The Bush administration defied these precepts and suffered as a result.

The secrecy of the Bush administration was genuinely excessive, and so it was self-defeating. One lesson of the last seven years is that the way for government to keep important secrets is not to draw the normal circle of secrecy tighter. Instead the government should be as open as possible, and when secrecy is truly necessary it must organize and conduct itself in a way that is beyond reproach, even in a time of danger. In the end, not Congress, nor the courts, nor the press can force the government to follow these precepts. Only the president can do that.
Could someone please tell me what good has come from our secret, illegal, lying, spying programs, aka domestic and foreign "wiretapping" surveillance, about which the President and administration have lied, concealed and perpetrated with our money, right under our noses? From the politicization of justice and the economy that the administration has similarly perpetrated?

I have some ideas, but your comments are most welcome.

Conviction Reversed (Almost)

Lessons from an important insider trading case, in which Joseph Nacchio formerly of Quest, gets a new trial, is the title of a potential review of this one, from the Tenth Circuit.