F#*& No This Case Isn't Over!
(AP Photo/Joe Cavaretta)
But the Court refused to address, much less resolve, whether the regulations (and their statutory basis) violate the broadcaster's first amendment "free speech" rights. The lower federal appeals court had not addressed or resolved that constitutional issue so the Justices were not bound to do so, either, and it is a virtual mantra at the Court that the Justices will rarely say more than they have to in order to resolve a dispute. Here, the majority determined that they could dispatch Fox's argument without ever reaching its constitutional merits.
That means that we are almost certainly destined for another few years of this legal battle that began all the way back in 2002. Fox promised to continue the fight at the 2nd U.S. Circuit Court of Appeals, where it almost certainly will raise the constitutional issue. But if the Court's makeup remains the same for the next few years it seems likely that the broadcaster will lose again on the broader legal scope and that ruling, if and when it comes, will be a much bigger deal than this deal is today.
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The Specter Spectre
(AP)
Clever guy that Arlen Specter. When the Ranking Member of the Senate Judiciary Committee publishes a long essay to liberals in the New York Review of Books he wants them to know he "appreciate[s] an imbalance in our 'checks and balances' that has become increasingly evident in recent years."
But when the cable cameras are on him, when he's talking to his base, he's glibly warning that an investigation into Bush-era torture policies would be a "witch hunt" that can easily be avoided if only investigators "walk in and ask where the file cabinets are."
You can understand why the Republican senator from Pennsylvania wants to be all things to all people. He's now facing another primary challenge from Pat Toomey, a staunchly conservative opponent, so he has to keep up his bona fides with the right.
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Kean, Hamilton, Warner Should Lead Commission
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) reacted quickly and positively this morning to President Obama's comments yesterday about the possibility of a bi-partisan commission that would investigate the Bush Administration's torture policies.
Speaking to reporters on Capitol Hill, Sen. Leahy said: "I would prefer an overarching commission, non-partisan commission, to look at this and for the American people to know what happened, that would require support from both parties just to get it in there. The president who seemed lukewarm about it, yesterday in his comments seemed more agreeable to the idea and I will sit down and talk with him about it."
Sen. Leahy won't just need to convince the White House and Justice Department to go along with the idea of a Torture Commission. He'll need Republicans to make the Commission truly bipartisan. And for that he might need an initial pledge from the executive branch not to prosecute former Bush officials who authorized and drafted the memos. Wouldn't that cool the ardor of Congressional Republicans who worry about a "witch hunt"?
Sen. Leahy will also need to work with Republicans and the White House in coming up with bright, independent commission members—though there are plenty of solid candidates around. How about bringing back Tom Kean and Lee Hamilton, at right, who did such stellar work on the 9/11 Commission? How about asking former senator John Warner to lend his vast experience? How about recruiting David Cole and Ruth Wedgewood and Scott Silliman from the world of academe? How about bringing in U.S. Attorney extraordinaire Patrick Fitzgerald to handle the investigative component of the panel?
This may be one of those times where the details have to come before the deal.
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Speaking to reporters on Capitol Hill, Sen. Leahy said: "I would prefer an overarching commission, non-partisan commission, to look at this and for the American people to know what happened, that would require support from both parties just to get it in there. The president who seemed lukewarm about it, yesterday in his comments seemed more agreeable to the idea and I will sit down and talk with him about it."
Sen. Leahy won't just need to convince the White House and Justice Department to go along with the idea of a Torture Commission. He'll need Republicans to make the Commission truly bipartisan. And for that he might need an initial pledge from the executive branch not to prosecute former Bush officials who authorized and drafted the memos. Wouldn't that cool the ardor of Congressional Republicans who worry about a "witch hunt"?
(AP)
This may be one of those times where the details have to come before the deal.
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Another Day, Another Torture Report
(AP/Washington Post)
It's an ugly story, offered in great detail (it was completed in November 2008) but not inconsistent with what previous reports have detailed about why and how we came to torture.
Here's my question for the day: does the release of the results of this pointed investigation make it more or less likely that we'll see torture prosecutions or a "torture commission"?
In other words, will opponents of those two options now point to the Armed Services Report and declare "we don't need to look back again, we've already done it"?
Or will the report only push the Congress and the White House into pressing the torture question further? Discuss.
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Torture Questions And Answers
4957825 I have stopped my head from spinning long enough to try to offer a few basic thoughts on today's "torture trial" news.
If you haven't heard already, President Barack Obama went remarkably out of his way Tuesday to keep alive the possibility of the potential prosecution of former Bush officials for formulating torture policies in the wake of 9/11. The President also implied his support for a bipartisan panel to look at the contentious issue.
This is news—very different in tone and tenor from what we heard from the Administration last week. So before the next head-turning development occurs on this topic here are ten things you ought to keep in mind as we go forward. Don't like them? Don't worry—they will probably be obsolete within the next few days.
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If you haven't heard already, President Barack Obama went remarkably out of his way Tuesday to keep alive the possibility of the potential prosecution of former Bush officials for formulating torture policies in the wake of 9/11. The President also implied his support for a bipartisan panel to look at the contentious issue.
This is news—very different in tone and tenor from what we heard from the Administration last week. So before the next head-turning development occurs on this topic here are ten things you ought to keep in mind as we go forward. Don't like them? Don't worry—they will probably be obsolete within the next few days.
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An Odd Week Ahead At The Supreme Court
(AP)
Welcome to an odd week at the Supreme Court where the Justices get the rare opportunity to chime in on two cases that present facts that: 1) most Americans can understand, and; 2) most Americans are appalled by.
"Hard facts," lawyers say, make "bad law." This week we'll begin to learn what sort of law the Court is going to make with the "easy facts" before it.
(CBS)
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America's History With Pirates
(AP)
Much has been written about how Thomas Jefferson was the first American president to confront African pirates. That's true. But did you know that in 1783, before the Constitution was drafted and enacted, the United States Congress offered to pay $80,000 in ransom to pirates who commandeered three American ships? That's the equivalent of roughly $38 million today. In the end, a treaty saved us from having to fork over the money.
Know why the Marine Hymn includes the phrases "to the shores of Tripoli"? It's because America fought a whole war—The Tripolitan War, from 1801 to 1805—to stop piracy and keep shipping lanes open. The war ended successfully for the US, but only after a $60,000 "tribute" was paid to Tripoli's "pasha." At least Jefferson was willing to fight the pirates. His predecessors, George and Washington and John Adams, were not. They found it cheaper to pay off the bandits than fight them.
Even into the 1830s, when America had better established herself as an international power, we had a sporadic pirate problem. This time it was Malayan pirates, off the coast of Indonesia, who seized an American vessel, killed some of its sailors, and made off with the ship's cargo. President Andrew Jackson, always spoiling for a fight, sent a large warship to the East Indies and tore the place up. Don't expect that to happen anytime soon.
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A Pirate Looks at Trial
(CBS)
It doesn't matter much that the suspect evidently is under 18 years old. Federal law permits the indictment of boys and girls for non-capital crimes. And since no victims died during the hijacking/piracy episode the death penalty would not be an option anyway following a conviction. Moreover, the circumstances surrounding any post-capture comments he may or may not have made shouldn't be a big deal, either. The feds won't need a confession here to be able to string together a very strong case. Captain Richard Phillips' testimony, alone, with the help of a little Navy videotape, would probably be enough to generate a conviction.
Can the suspect get a fair trial? It all depends upon what your definition of "fair" is. Federal judges no longer expect jurors to be blind to high-profile events—all they ask now is that potential jurors be able to put aside their pre-conceived notions about a defendant and judge him or her based upon the evidence at trial. In any event, I suspect that any trial here will not be the second coming of the OJ trial. The story of this crime has been played out in public for weeks—there will be no whodunit mystery that made the Simpson trial such a ratings winner.
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The End of Secret Prisons
(AP / CBS)
The New York Times played the story this way: "The Central Intelligence said Thursday that it would decommission the secret overseas prisons where it subjected Al Qaeda prisoners to brutal interrogation methods, bringing to a symbolic close the most controversial counterterrorism program of the Bush administration. But in a statement to employees, the agency's director, Leon E. Panetta, said agency officers who worked in the program "should not be investigated, let alone punished" because the Justice Department under President George W. Bush had declared their actions legal."
The Washington Post was a little less declarative: "The CIA no longer operates any secret overseas prisons, Director Leon Panetta said yesterday, and has not detained anyone since he became chief in February. Panetta's statement, contained in a message to the CIA workforce, also said the agency will no longer use contractors to conduct interrogations or to provide security for remaining detention sites."
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Washington Embraces The Stevens Six
(AP)
The New York Times early Tuesday offered a dubious news analysis about the alarming demise of the government's case against Ted Stevens, the former Alaska senator whose conviction last fall was dismissed this week by a judge furious over a pattern of prosecutorial misconduct.
By talking to Washington insiders (the Timesmen called them "the large corps of Washington lawyers who followed the case, including former prosecutors and defense lawyers") about their fellow Washington insiders (Stevens' prosecutors, who now are in big trouble) the Times came up with a think-piece that unfortunately reads more like an apologia for the newly-dubbed "Stevens Six" than it does an insightful look into how extraordinary (and disgraceful) all of this is.
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Will Stevens' Prosecutors Get Prosecuted?
(AP Photo/Gerald Herbert)
As dramatic as it sounds, it is not a terrible surprise that U.S. District Judge Emmet Sullivan announced in open court Tuesday that he is authorizing a criminal contempt investigation into the odious misconduct of Ted Stevens' prosecutors, actions that led directly to disgrace and the dismissal of his conviction.
Judges don't suffer deceit gladly and federal judges in particularly don't like it when they, or defense attorneys, are lied to by government attorneys.
The judge's inquiry, replete with the requisite special prosecutor, will run concurrently with any internal Justice Department investigation into what government lawyers knew, when they knew it, and why they failed so miserably to meet their ethical and constitutional duties before and during the former senator's corruption trial last fall. Either of the investigations, or both, could ultimately result in criminal charges (obstruction of justice, for example), and even prison time for the shady prosecutors who played so fast and loose with evidence.
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Analysis: Case's End Doesn't Mean Stevens Is Vindicated
(AP Photo/Al Grillo)
Safe? Yes. Innocent? Hardly.
Hold on, Governor Sarah Palin. Just because federal prosecutors wisely decided to drop their successful corruption case against Ted Stevens doesn't mean that the former Alaska senator has been vindicated, much less exonerated. So not only does a new senate race up there have no political chance it has no legal or logical foundation, either.
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Analysis: Ward Churchill And The Tension of Tenure
(AP)
When a Colorado jury declared Thursday that former University of Colorado professor Ward Churchill was unfairly dismissed from his tenured post after he called 9/11 victims "little Eichmanns" — when those jurors evidently discounted compelling evidence that Churchill's academic work was otherwise far below par — it was a jarring blow sure to impact the fragile balance between free speech and academic competence.
The jury's verdict — which essentially forces the University to reinstate a professor shown by his peers to have failed to satisfy even minimal standards of scholastic excellence — suggests that tenure is not so much a marriage that can sometimes end in divorce but rather a life sentence with only a precious few opportunities for parole. And it raises an elemental question: How bad does a tenured professor have to be before he can be canned? Is plagiarism bad enough? How about too many self-referenced footnotes? How about shady ghost-writing?
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Ted Stevens' Reversal of Fortune
(AP Photo/Gerald Herbert)
On Wednesday, Attorney General Eric Holder himself declared that he had reviewed the record of the Stevens' case and was not willing or able to continue to defend it in court against allegations that government lawyers and investigators improperly withheld evidence from the Stevens' defense team—and even apparently fabricated evidence that was shown to jurors! As a result, the old pol's conviction melts away, his looming date with a federal prison cell gets scratched from the schedule, and he will forever be able to argue to his fans and family and friends that he was railroaded.
The Bush Administration had "successfully" prosecuted Stevens last fall on charges that he had failed to properly report gifts given to him by a lobbyist. And then for months afterward the government had defended the jury's verdicts against efforts from Stevens' attorneys to get a new trial. It's a dynamic that happens all the time in criminal cases—our law books are filled with decisions about the constitutional rule that requires prosecutors to turn over to defense attorneys any evidence that could potentially exculpate their client.
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In Madoff Scandal, First Domino Falls
(NYSSCPA)
C.P.A. David Friehling is not charged with being a part of the Ponzi scheme itself. Apparently prosecutors at this point cannot prove that he knew with specificity what Madoff was up to for all those years. His charges are not nearly as serious as were the charges against Madoff. But Friehling is on the hook for "deceiving investors by falsely certifying that he audited the financial statements of Mr. Madoff's business," according to the feds. "Mr. Friehling's deception helped foster the illusion that Mr. Madoff legitimately invested his clients' money," is how the press release puts it.
This legal standard doesn't just spell trouble for Friehling. It also ought to make many other Madoff men and women, instruments to the crime, quake in their Guccis. What sworn representations did Madoff's lawyers make about his company and its investments? What about Madoff's bankers? How the people who handled all those phony "investments"? If you take out the element of conspiracy—if you concede that people didn't know what Madoff's mind and plan were—suddenly a much larger group within Madoff's circle become potential investigative targets or subjects.
Try as he might to take all of the blame upon himself, the truth is that it took a village to allow Madoff to get away with his crime for so many years. Wednesday, one of those other villagers also got in big trouble. And if the government continues to hold professionals accountable for their statements and representations about Madoff, Friehling won't be the last.
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