Professor Alberto Gonzales?
(AP)
Hey, young people! What an opportunity you have. It's not every day that you get to take a class with a man who has played such a significant role in recent American legal and political history. After all, your new professor is at the heart of: 1) the U.S. Attorney scandal, 2) the terror-memo scandal, 3) the Texas clemency memo scandal, 4) the Valerie Plame scandal, and the 5) domestic surveillance scandal. There are probably a few other scandals he's involved in that we don't even yet know about!
Your new professor is so wanted as a witness and deponent in Washington that when he lectures to you in Lubbock you'll probably have federal investigators sitting in on the class hoping he says something material and relevant. So the first thing you ought to do is buy yourself a really good cell-phone with recording capabilities. You never know when you are going to be able to sell sound-bytes of his remarks to your local television station. And YouTube? Forget about it.
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Obama Waffles on Indefinite Detention
4818723 President Barack Obama is said to be troubled by executive branch plans to indefinitely detain without trial the "worst of the worst" terror suspects currently held at Guantanamo Bay, Cuba. "It gives me huge pause," the president told The Associated Press last week. "And that's why we're going to proceed very carefully on this front. And it may turn out that after looking at all the dimensions of this that I don't feel comfortable with the proposals that surface on how to deal with this issue."
A plan that would endorse and extend one of the worst Bush-era terror law policies ought to give "huge pause" to the current occupants of the White House. Of all the ways in which Team Obama has so far let down civil libertarians - endorsing a broad "state secrets" doctrine, protecting Bush officials from prosecution over torture memos, fighting to keep basic rights from detainees at Bagram Air Force base, I could go on — surely the most odious is this dabbling in the dark art of endless confinement for men not proven guilty in any court of law.
As the administration tries to empty and close Gitmo, federal officials continue to say that there are some prisoners — like perhaps Ramzi Binalshibh, Khalid Sheik Mohammed and Abu Zubaydah — who cannot be released into the world but who also may not be triable because of the way evidence against them was obtained (for example, through torture). Bush lawyers made these claims, too, even as they tried to prosecute terrorists under military commission rules. No one who heard candidate Obama's noble terror law speeches would have predicted he would follow the same course.
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A plan that would endorse and extend one of the worst Bush-era terror law policies ought to give "huge pause" to the current occupants of the White House. Of all the ways in which Team Obama has so far let down civil libertarians - endorsing a broad "state secrets" doctrine, protecting Bush officials from prosecution over torture memos, fighting to keep basic rights from detainees at Bagram Air Force base, I could go on — surely the most odious is this dabbling in the dark art of endless confinement for men not proven guilty in any court of law.
As the administration tries to empty and close Gitmo, federal officials continue to say that there are some prisoners — like perhaps Ramzi Binalshibh, Khalid Sheik Mohammed and Abu Zubaydah — who cannot be released into the world but who also may not be triable because of the way evidence against them was obtained (for example, through torture). Bush lawyers made these claims, too, even as they tried to prosecute terrorists under military commission rules. No one who heard candidate Obama's noble terror law speeches would have predicted he would follow the same course.
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Supreme Court Term in Review
(IStockPhoto)
With only a few exceptions, the Court ruled against employees to the benefit of employers, against environmentalists to the gain of polluters, and against suspects in favor of law enforcement officials. The self-proclaimed "umpire" on the Court, Chief Justice John G. Roberts, Jr., continued his unseemly pattern – first identified by writer Jeffrey Toobin – of calling only balls for one team and only strikes for another. Justice Clarence Thomas shed any pretense of moderation and Justice Anthony M. Kennedy, the Court's swing vote, demonstrated over and over again that he's a centrist only in relation to his conservative colleagues.
And even when so-called "liberal" causes earned a precious five votes on the Court – like when a heinous strip search of a young girl for Ibuprofen was deemed unconstitutional – the Justices managed to limit the damage to offenders, ruling that the school officials who conducted the search were immune from liability. The same pattern held true in the big test over the Voting Rights Act. The Justices narrowly saved the statute – for now anyway – but still ruled in favor of a political district that had sought to get out from under federal oversight. And speaking of "activism," the Court's conservative majority struck down decades-old precedent that had protected the rights of suspects from further interrogation once they had asked for an attorney.
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Madoff Sentence "Legally Suspect And Grossly Unfair"
(AP Photo/Christine Cornell)
As a practical matter, whether Madoff got 150 years or 100 years or 50 years or 25 years is of no moment—he'll die in prison. But as a legal matter, there is a great deal of difference between an unsustainable sentence like this one and a reasoned one, like the 50 years that probation officials had suggested. If the sentence is appealed, I suspect a great many appeals court judges would reject it and order a lesser sentence.
None of this condones what Madoff did or the harm he caused to victims all over the world. Madoff is an all-time white-collar crook who really does deserve never again to breathe free air.
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150-Year Madoff Sentence Is "Symbolic"
(AP Photo/Louis Lanzano)
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Tie Goes to Kennedy In Ricci Case
(AP)
On the 2nd U.S.Circuit Court of Appeals, the score was 7-6 in favor of the City. At the United States Supreme Court, the score was 5-4 in favor of the challengers. Yes, the Supreme Court gets the final call in matters like this. But let's not pretend that the Justices are so remarkably brighter and wiser than are their lower federal court colleagues that their votes are seeped in justice and the lower-court votes wallow in ignorance. The fact is that the case generated a series of legal issues that were remarkably close calls given the Court's past precedent (and the new one it has just adopted).
We particularly care about this case, and this result, because the likely next Supreme Court Justice, 2nd U.S. Circuit Court Judge Sonia Sotomayor, was one of the 22 jurists who took a crack at deciphering what happened in New Haven. Last June, the Supreme Court nominee, in a brief panel ruling, sided with the City in finding that because no firefighters were promoted when the initial test was tossed out there was no valid discrimination claim. Six of her colleagues on the 2nd Circuit, and four of the Court's most liberal Justices agreed with this view.
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Sotomayor Overturned In Firefighters Case
(IStockPhoto)
The majority said that the fear of litigation by black firefighters who didn't do well on this test didn't justify tossing the test. So I guess the lesson here is that when you are going to test for promotions you had better make sure the test is race neutral.
The four dissenters found that the white firefighters had no right to be promoted anyway and had not seen black candidates promoted over them-- only the test was tossed out. This, the dissent claimed, did not warrant the court's interference in New Haven's attempt to solve what it considered a legitimate problem with the tests.
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Michael Jackson's Trial: You Had To Be There
(AP)
You had to see it to believe it. You had to be here, in this non-descript little conservative town nestled in one of the most beautiful parts of the country, inside a Santa Barbara County courthouse.
You had to watch Michael Jackson, his accuser and prosecutors and defense lawyers and judge to truly understand how and why the King of Pop finds himself today in the position he is in.
You had to see how much more pale he looks in person even than he appears on television. You had to see his entourage and the ghastly, ghostly way he walked into and out of court each day. You had to see his fans, the zealots who sacrificed the responsibilities in their own lives to come by day after day to lend support to the molestation and conspiracy defendant.
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Andrew Cohen On Supreme Court Decisions
The Supreme Court ruled today in an 8-1 vote that the strip search of a female teen by high school officials for ibuprofen was a violation of the teen's constitutional rights.
CBS News legal analyst Andrew Cohen says that it's "important to remember" that the court didn't illegalize school searches but rather drew a line around necessary conditions for aggressive searches.
Cohen discusses the ruling further below:
Watch CBS Videos Online
The Supreme Court will also rule on the controversial Connecticut firemen case that Supreme Court nominee Sonia Sotomayor ruled on in the U.S. Court of Appeals.
In the case, the firemen accuse the fire department of reverse discrimination against them. Cohen says the Court ruling of the case could prove "embarrassing" for Sotomayor, given that she ruled against the firemen in court.
Cohen discusses the case further below:
Watch CBS Videos Online
The Supreme Court will also rule on the controversial Connecticut firemen case that Supreme Court nominee Sonia Sotomayor ruled on in the U.S. Court of Appeals
In the case, the firemen accuse the fire department of reverse discrimination against them. Cohen says the Court ruling of the case could prove "embarrassing" for Sotomayor given that she ruled against the firemen in court.
Cohen discusses the case further below:
Watch CBS Videos Online
CBS News legal analyst Andrew Cohen says that it's "important to remember" that the court didn't illegalize school searches but rather drew a line around necessary conditions for aggressive searches.
Cohen discusses the ruling further below:
Watch CBS Videos Online
The Supreme Court will also rule on the controversial Connecticut firemen case that Supreme Court nominee Sonia Sotomayor ruled on in the U.S. Court of Appeals.
In the case, the firemen accuse the fire department of reverse discrimination against them. Cohen says the Court ruling of the case could prove "embarrassing" for Sotomayor, given that she ruled against the firemen in court.
Cohen discusses the case further below:
Watch CBS Videos Online
The Supreme Court will also rule on the controversial Connecticut firemen case that Supreme Court nominee Sonia Sotomayor ruled on in the U.S. Court of Appeals
In the case, the firemen accuse the fire department of reverse discrimination against them. Cohen says the Court ruling of the case could prove "embarrassing" for Sotomayor given that she ruled against the firemen in court.
Cohen discusses the case further below:
Watch CBS Videos Online
Thomas Strips Sense From Search
(CBS)
Less concerned about a forced and unnecessary intrusion into a young girl's pants and bra than he was about judicial intrusion into school safety policies, Thomas declared that the odious search was legal because administrators could have found what they were looking for. The majority ruling, he wrote, gives "judges sweeping authority to second-guess" school administrators trying to ensure the health and safety of students. His long dissent did not include a single sympathetic remark about the ordeal suffered by the victim in the case.
Fortunately, the other eight Justices on the Court live in the real world, where outrageous conduct by bureaucrats is frowned upon, and so they unsurprisingly agreed that school officials violated the Fourth Amendment in 2003 when they checked (then) 13-year-old Savanna Redding's bra and underwear for pills. "She was told to pull her bra out and to the side and shake it," Justice David H. Souter wrote for the majority, "and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found." Other students were searched in a similar fashion that day.
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Voting Rights Challenge Ends With Whimper
(AP)
On Monday, the Court voted 8-1 to punt in the most anticipated ruling of the current term. It failed or refused to determine whether a key provision of the Voting Rights Act is still constitutionally necessary to address and preclude diminishing discriminatory practices in the Old South. As a result of the ruling, the Act survives for the foreseeable future, the challenge to the Act (by a Texas district) is successful, and all sides in the complex case get to come away thinking it could have been worse and could have been better.
The most interesting component of the ruling was the dissent, by Justice Clarence Thomas, the only black Justice, who alone among his conservative colleagues was willing to scrap Section 5 of the Act as no longer necessary. "The extensive pattern of discrimination that led the Court to previously uphold Section 5… no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence."
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Court Content To Follow, Not Lead, On DNA Testing
(AP / CBS)
So let's put Thursday's DNA ruling into context. Yes, it's true. A sharply-divided Court refused to recognize a constitutional right to DNA testing following a conviction. "Swing" Justice Anthony M. Kennedy swung this time with his conservative brethren and Chief Justice John G. Roberts, Jr., aiming low as always when it comes to the rights of criminal defendants, declared that:
"DNA testing alone does not always resolve a case…The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence,is suddenly in doubt. The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice."
And, yes, it's true. Several of the most conservative Justices were willing to go even further—to bar DNA testing following a conviction when the defense attorney at trial chooses not to have such testing performed for tactical or strategic reasons. Justice Clarence Thomas and Samuel A. Alito, Jr. wouldn't have even gotten to the constitutional issue if they didn't have to. For them, it was enough that the defendant's lawyer in the case had passed on the opportunity to test for DNA before the jury reached its verdict.
And, yes, it's true. As the four dissenting Justices pointed out, that officials in Alaska, where the crime occurred, have been unable for the better part of a decade to come up with a compelling reason why they won't allow convicted rapist William Osborne access to evidence he says will exonerate him. Justice John Paul Stevens wrote:
"The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise."
Regardless of these views and votes, the real action on the DNA front is not taking place in federal courtrooms or even necessarily in Washington. It's happening at the state and local level, and in prosecutors' offices, and on judicial commissions, where the valor and the value of DNA testing is becoming more and more apparent. This year alone, reports the Innocence Project, 13 men and women were exonerated through DNA testing, bringing the total to nearly 300 since the project began. Although it's probably too late for Osborne absent some surprising action by Alaskan lawmakers, the future is now for accuracy and reliability in forensic testing.
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Judge White And Wrong
He'll probably get overturned on appeal, but if and when he does, at least U.S. District Judge Jeffrey White will have gone down fighting and with candor.
The federal trial judge in Northern California declared late Friday in a 42-page ruling that a civil lawsuit against John Yoo could proceed, at least for the time being, to determine whether the torture-memo scoundrel can be held legally accountable for his role in authorizing and enabling the Bush Administration's odious torture policy.
The case is styled Padilla v. Yoo and, yep, you guessed it, this means that old friend Jose Padilla is back in the news again. The once-upon-a-time so-called "dirty bomber" (now just a plain old felon serving a terror conspiracy sentence) claims that he suffered "gross physical and psychological abuse at the hands of federal officials" authorized and immunized by Yoo's warped legal reasoning.
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The federal trial judge in Northern California declared late Friday in a 42-page ruling that a civil lawsuit against John Yoo could proceed, at least for the time being, to determine whether the torture-memo scoundrel can be held legally accountable for his role in authorizing and enabling the Bush Administration's odious torture policy.
The case is styled Padilla v. Yoo and, yep, you guessed it, this means that old friend Jose Padilla is back in the news again. The once-upon-a-time so-called "dirty bomber" (now just a plain old felon serving a terror conspiracy sentence) claims that he suffered "gross physical and psychological abuse at the hands of federal officials" authorized and immunized by Yoo's warped legal reasoning.
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They're Off On The Road From Gitmo
5030951When the Obama Administration announced this week that it was sending, or had sent, a group of detainees from Guantanamo Bay, Cuba to far-off Palau and to Bermuda the feds were doing nothing more or less than they had promised when they took office in January. The terror suspects have to go somewhere, after all, if the current administration is going to finish the business of depopulating Gitmo; a job that was earnestly started by the Bush Administration.
Immediately, however, the snide and the snark began. The men—Uighurs held captive for years without charges-- were going to "vacation paradises;" the detainees—who never should have been apprehended in the first place and who were long ago de-classified from "combatant" status—were costing taxpayers $11 million each, the price that Palau had imposed upon the White House for hosting the refugees. They were "terrorists" who were destined to come back and get us, even from so far away, which is why it was a good thing that we didn't just let them settle here in the first place.
So much disinformation, so many lies. Let's start with the most important one—the lazy notion that the Uighurs are "terrorists" who are being let off scot-free in the interests of political expediency. They aren't. They have been held captive, without charges, for years and years, and the only beef they had when they got to Gitmo was against China, which places them into no small minority around the world. Indeed, we can't send them back to China for fear that they will be persecuted. They are not and were not members of Al Qaeda.
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Immediately, however, the snide and the snark began. The men—Uighurs held captive for years without charges-- were going to "vacation paradises;" the detainees—who never should have been apprehended in the first place and who were long ago de-classified from "combatant" status—were costing taxpayers $11 million each, the price that Palau had imposed upon the White House for hosting the refugees. They were "terrorists" who were destined to come back and get us, even from so far away, which is why it was a good thing that we didn't just let them settle here in the first place.
So much disinformation, so many lies. Let's start with the most important one—the lazy notion that the Uighurs are "terrorists" who are being let off scot-free in the interests of political expediency. They aren't. They have been held captive, without charges, for years and years, and the only beef they had when they got to Gitmo was against China, which places them into no small minority around the world. Indeed, we can't send them back to China for fear that they will be persecuted. They are not and were not members of Al Qaeda.
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Common Sense And Justice Collide
(CBS)
In a 5-4 ruling authored by Justice Anthony M. Kennedy, the Court declared Monday morning in Caperton v. A.T. Massey that the Constitution requires a state court judge to recuse himself from a lawsuit when one of the litigants in that case had previously spent massive amounts of money (millions of dollars) to help support the judge's campaign for judicial office. In such an extreme and egregious instance, the Court ruled, the "probability of actual bias" was "too high to be constitutionally tolerable"under the Due Process Clause of the Fourteenth Amendment.
The facts of the case are grotesquely provocative. A fellow named Hugh Caperton sued Massey Energy Co. and in 2002 won a $50 million judgment against the company. As most losers do, Massey appealed. While the appeal was pending, Massey went out and spent about $3 million to support a judicial candidate named Brent B. Benjamin—a figure representing more than half of the candidate's campaign war chest. Benjamin won the election by a narrow majority, which won him the right to hear Massey's appeal. Guess how Benjamin voted, not once but twice? That's right-- for Massey and against Caperton.
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