Counsel for the Defense (Yes, We don't just shoot em first)

GOVERNMENT MOVES TO DISMISS KHADR APPEAL

In what can only be described as the latest ironic twist in the sad and strange tale of military commissions, Administration lawyers today filed a motion to dismiss Omar Khadr’s appeal from a special military appeals court decision allowing military commission proceedings to resume at Guantanamo Bay. Administration lawyers argue, in effect, that the Secretary of Defense lacked the authority to issue a military commission rule giving the defense the same ability as the government to seek review of military appeals court decisions.

The rule in question is part of the so-called Manual for Military Commissions, a set of procedures for military commissions issued by the Secretary of Defense in January of this year. The Manual implements the controversial Military Commissions Act of 2006 (MCA). The government’s filing appears to be an effort to hit the “delete” button on language in Rule for Military Commission 908(c)(3), which gives the defense a coequal right to seek review of decisions by the Court of Military Commission Review. Significantly, the MCA required the Secretary to report the rules to Congress for its review prior to commencement of commission proceedings. The Administration filing could be viewed, in effect, as an attempt to change those rules without proper notification of Congress.

Moreover, the government’s position is particularly ironic in light of positions taken before the Court of Military Commission Review in this very case. There, the government argued that the Secretary of Defense had broad authority to issue rules implementing the MCA and another federal statute giving the Secretary the power to delegate his responsibilities to subordinate DoD officials.

The position reflected in the government’s filing is, to say the least, odd coming from an Administration that has arguably made the most expansive claims for executive power in U.S. history. Indeed, the Administration has contended that the President can vary the meaning of federal statutes through so-called “signing statements,” and can ignore federal statutes that, in the Administration’s view, infringe on the President’s powers as Commander-in-Chief. Yet, in the Administration’s view, the responsible executive branch official in this case apparently lacks the authority to interpret the MCA in a way to make the commissions process slightly fairer to the accused. One wonders how they can even make the argument with a straight face.

Mukasey for AG -- NOT

Mukasey's weaseling on water-boarding was unworthy of him. Perhaps feeling pressure from his White House sponsors, he cast himself last week as little more than Torture Boy in long pants. His refusal to call water-boarding torture delighted the White House. His suggestion that he really wasn't familiar with the particulars of the technique was laughable. By now, no literate American adult is unfamiliar with this charming form of interrogation by near-drowning, which makes the claim even more absurd coming from a retired New York federal judge whose main claim to fame is presiding over difficult terrorism trials. Mukasey's response that "if water-boarding is torture, torture is not constitutional" was a transparent evasion. And the entire exchange throws a more sinister light on his borrowed quip that the infamous Gonzales-sponsored torture memo "was worse than a sin, it was a mistake. It was unnecessary." One now fears that Mukasey doesn't so much disagree with the substance of that memo, as he thinks that writing it down was a political error.

ouch. Read more from Prof. Bowman at Slate.

October - November News

Z

The Legal Monthly

Vol. 2 No. 8 Read Z the Blog at http://zlegaltimes.blogspot.com/ Oct/Nov. '07

The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information

Contents

The Costs of Justice

First Take TNR

JEC Rap Sheet

Dworkin: “The Supreme Court Phalanx”

Scotus Focus

A Prediction

A Cute, if Sardonic, Irony

Human Rights Watch Report

Sentencing

Retroactivity

Oral argument

Sex Offender Residency Restrictions

Mailbag

Read the rest at the Newsletter site.

Change or No Change? Big Money and Moray Hinge on This

Supreme Court’s agreement on Sept. 25 in Baze v Rees to rule on the constitutionality of the lethal injection method, and the Court’s order on Wednesday to postpone a scheduled execution in Virginia (Emmett v. Johnson).

Read the rest Here

Where's the Good Life Gone?

Hmmm. Here's Judith Warner at NYT:

newest set of poll results showing Clinton’s surprising levels of popularity among lower- and middle-class women, white moderate women, even black voters, was another story this week, based on a new set of data from the I.R.S.

It showed that America’s most wealthy earn an even greater share of the nation’s income than they did in 2000, at the peak of the tech boom. The wealthiest 1 percent of Americans, the Wall Street Journal reported, earned 21.2 percent of all income in 2005 (the latest date for which these data are available), up from the high of 20.8 percent they’d reached in the bull market of 2000. The bottom 50 percent of people earned 12.8 percent of all income, compared with 13 percent in 2000. And the median tax filer’s income fell 2 percent when adjusted for inflation (to about $31,000) between 2000 and 2005.

More and more people are being priced out of a middle class existence.

More Key Points

* The United States has the highest reported incarceration rate in the world. While the United States currently incarcerates 750 inmates per 100,000 persons, the world average rate is 166 per 100,000 persons. Russia, the country with the second highest incarceration rate, imprisons 624 per 100,000 persons. Compared to its democratic, advanced market economy counterparts, the United States has more people in prison by several orders of magnitude. Although crime rates have decreased since 1990, the rate of imprisonment has continued to increase.

* Growth in the prison population is due to changing policy, not increased crime. Many criminal justice experts have found that the increase in the incarceration rate is the product of changes in penal policy and practice, not changes in crime rates. Changes in sentencing, both in terms of time served and the range of offenses meriting incarceration, underlie the growth in the prison population.

* Changes in drug policy have had the single greatest impact on criminal justice policy. The Anti-Drug Abuse Act of 1986 created mandatory minimum sentences for possession of specific amounts of cocaine. The Act instituted a 100-to-1 differential in the treatment of powder and crack cocaine, treating possession of 5 grams of crack cocaine the same as possession of 500 grams of powder cocaine. Crack cocaine is typically consumed by the poor, while powder cocaine, a significantly more expensive drug, is consumed by wealthier users. Mandatory minimum sentences for low-level crack-cocaine users are comparable (and harsher in certain cases) to sentences for major drug dealers.

* The composition of prison admissions has also shifted toward less serious offenses, characterized by parole violations and drug offenses. In 2005, four out of five drug arrests were for possession and one out of five were for sales. The crime history for three-quarters of drug offenders in state prisons involved non-violent or drug offenses.

* The prison system has a disproportionate impact on minority communities. African Americans, who make-up 12.4 percent of the population, represent more than half of all prison inmates, compared to one-third twenty years ago. Although African Americans constitute 14 percent of regular drug users, they are 37 percent of those arrested for drug offenses, and 56 percent of persons in state prisons for drug crimes. African Americans serve nearly as much time in federal prisons for drug offenses as whites do for violent crimes.

* The U.S. prison system has enormous economic costs associated with prison construction and operation, productivity losses, and wage effects. In 2006, states spent an estimated $2 billion on prison construction, three times the amount they were spending fifteen years earlier. The combined expenditures of local governments, state governments, and the federal government for law enforcement and corrections total over $200 billion annually. In addition to these costs, the incarceration rate has significant costs associated with the productivity of both prisoners and ex-offenders. The economic output of prisoners is mostly lost to society while they are imprisoned. Negative productivity effects continue after release. This wage penalty grows with time, as previous imprisonment can reduce the wage growth of young men by some 30 percent.

* Prisons are housing many of the nation’s mentally ill. Prisons are absorbing the cost of housing the nation’s mentally ill. The number of mentally ill in prison is nearly five times the number in inpatient mental hospitals. Large numbers of mentally ill inmates, as well as inmates with HIV, tuberculosis, and hepatitis also raise serious questions regarding the costs and distribution of health care resources.

* The United States faces enormous problems of offender reentry and recidivism. The number of ex-offenders reentering their communities has increased fourfold in the past two decades. On average, however, two out of every three released prisoners will be rearrested and one in two will return to prison within three years of release.

The Costs of Justice, American Style

JOINT ECONOMIC COMMITTEE TO EXAMINE ECONOMIC COSTS OF SURGE IN U.S. PRISON
POPULATION AND POSSIBLE SOLUTIONS Hearing on Costs of Mass Incarceration Called by VA Sen. Webb in Light of 500 Percent Increase in Prison Populations In Last 30 Years Washington, D.C. – U.S. Senator Jim Webb (D-VA) will hold a Joint Economic Committee (JEC) hearing to explore the economic consequences and causes of and solutions to the steep increase of the U.S. prison population. The hearing entitled, “Mass Incarceration in the United States: At What Cost?” is scheduled for Thursday, October 4, 2007 at 10:00am in Room 216 of the Hart Senate Office Building. The United States has 25 percent of the world’s prisoners,despite having only 5 percent of the world’s population. The JEC will examine why the United States has such a disproportionate share of the world’s prison population, as well as ways to address this issue that responsibly balance public safety and the high social and economic costs of imprisonment.

Expert witnesses have been asked to discuss the costs of maintaining a large prison system; the long-term labor market and social consequences of mass incarceration; whether the increase in the prison population correlates with decreases in crime; and what alternative sentencing strategies and post-prison re-entry programs have been most successful at reducing incarceration rates in states and local communities.
WHAT: Joint Economic Committee Hearing:

“Mass Incarceration in the United States: At What Cost?”
WHEN: Thursday, October 4, 2007 – 10:00am
WHERE: 216 Hart Senate Office Building
Witnesses (as of September 27):

• Dr. Glenn Loury, Economics and Social Sciences Professor, Brown University
• Dr. Bruce Western, Director Inequality and Social Policy Program, Harvard University
• Alphonso Albert, Executive Director, Second Chances
• Michael Jacobson, Executive Director, Vera Institute for Justice
The Joint Economic Committee, established under the Employment Act of 1946, was created by Congress to review
economic conditions and to analyze the effectiveness of economic policy.
www.jec.senate.gov
# # #

Dworkin On the Court

Not last nor least, here's Ronald Dworkin (beating - not bleating) about the bleeding Supreme Court:
(appearing here)

The Supreme Court Phalanx

By Ronald Dworkin

Anthony Kennedy
(click for larger image)

1.

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush's choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman's right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court's term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament from the bench, "It is not often in the law that so few have so quickly changed so much."

It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance. It urges judicial restraint and deference to legislatures when these bodies pass measures that political conservatives favor, like bans on particular medical techniques in abortion. But the right-wing coalition abandons restraint when it strikes down legislation that conservatives oppose, like regulations on political advertising and modest school district programs to further racial integration in public education. It claims to celebrate free speech when it declares that Congress cannot prevent rich corporations and unions from evading restrictions on political contributions. But it subordinates free speech to other policies when it holds that schools can punish students for displaying ambiguous but not disruptive slogans at school events. Lawyers have long been fond of saying, quoting Mr. Dooley, that the Supreme Court follows the election returns.^[1] These four justices seem to follow Fox News instead.

---

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They need a fifth vote to win the day in particular cases, and they most often persuade Justice Anthony Kennedy to join them. Kennedy has taken Sandra Day O'Connor's place as the swing vote on the Court. Twenty-four cases—a third of the Court's decisions—were decided by 5–4 votes last term, nineteen of them on a strict ideological division. Kennedy voted on the winning side in all twenty-four of them. He joined with the right-wing justices in thirteen of the ideological cases; he voted against them and with the four more liberal justices—John Paul Stevens, David Souter, Ruth Ginsburg, and Breyer— in the remaining six cases, including four death penalty appeals from Texas. He showed deplorable partisanship when he voted with the majority in the Court's intellectually disreputable 2000 decision to elect Bush president.^[2] He wrote a poor and insensitive majority opinion this year in the Court's so-called partial-birth abortion case. (I discussed his opinion in these pages earlier this year.)^[3]

But in 1992 Kennedy joined O'Connor and Souter in the key opinion upholding abortion rights in principle and providing a firmer constitutional basis for them,^[4] and in 2003 he wrote a strong opinion for a 6–3 majority, relying on that earlier abortion decision, ruling that states cannot make homosexual acts criminal.^[5] He therefore offers hope—slim, but real—of some moderating influence on the Jacobins; lawyers who argue important cases before the Court in the next few years will presumably frame their arguments to convince him.

2.

These are strong claims about the revolutionary character and poor legal quality of many of the Court's 5–4 decisions, and it is necessary to review these decisions with some care, in the remainder of this essay, to explain and defend those claims. The most important decision was the Court's 5–4 ruling striking down school student assignment plans adopted by Seattle and Louisville. . . . ****

N.b. Commentary to follow

Front and Center at the Supreme Court

A 2006 law, passed by Congress and signed by Mr Bush prohibits Guantanamo Bay detainees from challenging their confinement in federal courts and states their cases can only be heard by military commissions, not civilian courts.

This term, Supreme Court justices will decide whether in doing so, the law has violated the constitutional requirement to provide habeas corpus - a procedure under which someone who holds a prisoner is required to show reason why to a court - to prisoners in the US.

The US Appeals Court for the District of Columbia Circuit ruled that habeas corpus does not apply to foreign nationals being held at Guantanamo Bay because it is not US soil.

Professor AE Dick Howard, of the University of Virginia School of Law, said the Guantanamo cases would be "front and centre" of the new session.

Laura Smith-Spark
BBC News, Washington

Nb. If the detainees "win" is that a conserative or liberal outcome? Hint: is the Constitutional right to habeas corpus a conservative or liberal notion? Hint 2: Is supporting tyranny conservative or liberal?

Check these for more previews: Adler

Wittes: "it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle. It was depressing, and the most depressing part is that sinking feeling that the justices will do the same thing again beginning today."