The Discerning Texan

So I'm reading Jack Goldsmith's new book, The Terror Presidency: Law and Judgment Inside the Bush Administration, and so far it's quite good. Excerpt:

It is unimaginable that Francis Biddle or Robert Jackson would have written Franklin Roosevelt a memorandum about how to avoid prosecution for his wartime decisions designed to maintain flexibility against a new and deadly foe. . . . Many people think the Bush administration has been indifferent to wartime legal constraints. But the opposite is true: the administration has been strangled by law, and since September 11, 2001 this war has been lawyered to death.

Labels: Homeland Security, Judicial, National Security

What's it all about? In one sentence, it comes down to this:

Does the United States Government have the right to conduct secret surveillance of terrorism suspects on American soil?

But the case has become rather more complicated than that. Before we get to the action of August 15, here's the gist of the case in a few short paragraphs, cutting through everyone's double-talk on both sides, and granting everyone's allegations to be true:

A Saudi charity known to finance terrorist activities opened a branch in Oregon. The US government tapped the phones of the Oregon branch and heard evidence that they were helping to finance terrorist activities as well. With this info in hand, the government designated the Oregon branch as terrorists, and froze their assets. The Oregon branch, unaware that they had been sureveilled and that the government had solid evidence against them, challenged this, and during legal proceedings, a government employee accidentally gave logs of the tapped phone conversations to the charity's lawyers.

At that point, the case changed gears: the charity hooked up with liberal lawyers to challenge the very legality of the surveillance, and by extension the legality of all secret surveillance. The decision was made to make the trial into a test case designed to weaken and embarrass the Bush administration. The government sought to circumvent this strategy by suppressing the evidence of the leaked document on grounds that its exposure would endanger national security. The governement requested back and eventually obtained all U.S. copies of the surveillance logs -- but not before an unknown number of copies made their way overseas, presumably into hostile hands. Aside from revealing the fact that the charity was surveilled, it is not clear what "operational details" the leaked document reveals. The government refuses to admit to the wiretapping or to say whether or not a warrant was obtained.

The entire case, as it is now being litigated, hinges on the question: do the plaintiffs even have the legal right to sue the government? In order to prove they have "standing," they must prove they were surveilled; and so must refer to the only evidence which proves this, the mysterious document. The government claims the document is Top Secret, and thus not admissable evidence. It is this question that was being argued before the Ninth Circuit Court on August 15.

That's where things stand at the time of this writing. And even if you knew nothing more about the specifics of the case, deciding which side you favor is almost necessarily dependent on your political philosophy. Even granting the allegation that the surveillance was done without a warrant, there are many who argue that the government would be abdicating its duty to protect its citizens if it did not monitor known terror suspects, warrant or no warrant. But does the "slippery slope" argument apply here: if we allow warrantless surveillance of terror suspects, are we to assume that the government will eventually abuse this power to harrass non-terrorists for politcal reasons (which is obviously what many on the left fear)?

Labels: 9th Circuit, Islamic Fascism, Judicial, NSA Surveillance, Travesty of Justice

Labels: Democrat Sabotage, Judicial, US Senate

We saw this one coming, of course. Earlier this summer, Sen. Charles Schumer (D-NY) announced to liberal lawyers at the American Constitution Society: “I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.” Evidently, Sen. Schumer’s promise is now his party’s standard operating procedure for any and all Bush Administration judicial nominations.

From the beginning of his Administration, President Bush was committed to appointing judges who understand the appropriate limits on their role and seek to interpret the law as written by Congress — rather than revising it to achieve their own preferred goals. Too many Democrats, though, prefer judges who, under the guise of interpreting the Constitution, will impose their policy preferences on the citizenry.

These are two very different notions of the appropriate role of judges. On this issue, I stand with the President, along with the kinds of judges he appoints, like Chief Justice John Roberts and Justice Samuel Alito (both of whom, I’d note are now facing political scrutiny from the Senate Judiciary Committee). The battle for the courts is one that liberals take seriously, and they use every legislative and procedural arrow in their quiver to win — even if it means tearing down good people to achieve their aims.

Judge Southwick’s a good example. His opponents do not question Judge Southwick’s qualifications to sit on the federal appeals court. Indeed, they cannot. Judge Southwick served on the Mississippi Court of Appeals from that court’s very inception in January 1995 through December 2006. Prior to serving as Deputy Assistant Attorney General for the U.S. Department of Justice’s Civil Division, from 1989 to 1993, he was in a general civil private practice for 12 years. He’s taught law as an adjunct professor at Mississippi College School of Law since 1998. He’s also served his country in Iraq, fulfilling his National Guard duty as Deputy Staff Judge Advocate from August 2004 to July 2005, and then as Staff Judge Advocate until January 2006. Even the American Bar Association, which often treats conservative judicial nominees unfairly, unanimously gave Judge Southwick the institution’s highest possible rating.

So rather than assail Judge Southwick’s legal competency, Senate Democrats, led primarily by Sen. Dick Durbin (D-IL), are instead attacking Judge Southwick’s character. Ignoring his volunteer work with Habitat for Humanity since 1993 and the time he spent as a board member and president of a local Jackson, Miss., charitable organization, Senate Democrats claim that Judge Southwick is racist and anti-homosexual.

The evidence against Judge Southwick? Two decisions he joined while sitting on the Mississippi Court of Appeals. Two, and only two, out of the more than 7,000 cases Judge Southwick heard, and in both of these instances, Judge Southwick had no hand in the writing of the rulings.

The Democrats have started a precedent--they were the first Party to filibuster the confirmation of Circuit Court judges in American history. In fact prior to this bunch, very few Supreme Court nominations became as contentious. That precedent is not likely to be kind to the next Democrat President (whenever that happens..). As I said last night, I do not think that the United States Congress has been this divided and this partisan since prior to the Civil War; I certainly have never seen anything like it in my lifetime...

The radicalized Democrat Congress seems bound and determined to force Constitutional showdowns with the President and against other actions byany other Republicans they can get their paws on. This isn't a moral, bipartisan Congress; this is a scorched earth, take no prisoners Congress. And one gets the feeling that two very powerful and highly stressed tectonic plates are coming together with the epicenter being the US Capitol building. The result may be uglier and far more catastrophic than any of us can imagine.

Labels: Democrat Sabotage, Judicial, The Left, US Senate

Here's just a random half-dozen reforms the US justice system would benefit from:

1) An end to the near universal reliance on plea bargains, a feature unknown to most other countries in the Common Law tradition. This assures that a convicted man is doubly penalized, first for the crime and second for insisting on his right to trial by jury. The principal casualty of this plea-coppers' parade is justice itself: for when two men commit the same act but the first is jailed for the rest of his life and dies in prison while the second does six months of golf therapy and community theatre on a British Columbia farm and then resumes his business career, the one thing that can be said with certainty is that such an outcome is unjust.

2) An end to the reliance on technical charges such as "mail fraud" and "wire fraud", whereby you're convicted not for the crime itself but for sending a letter or authorizing a bank transfer in the course of said crime. This gives a peculiar dynamic to the presentation of the evidence: the jury spends months hearing about vast schemes and elaborate conspiracies but in the end is asked to rule only on one narrow UPS delivery or faxed letter, the sending of which is not in dispute, only the characterization thereof. If the non-competes are fraudulent, prosecute the fraud, not the mailing of a memo to Jim Thompson while he's on vacation at Claridge's in London.

3) An end to the process advantages American prosecutors have accumulated over the years - such as the ability to seize a defendant's funds and assets and deprive him of the means to hire good lawyers and rebut the charges. Or to take another example: Unlike the Crown in Commonwealth countries, in closing arguments to the jury the US government gets to go first and - after a response from the defence - last. This is an offence against the presumptions of English law: The prosecutor makes his accusation, the accused answers them. Every civilized legal system allows the defendant the last word.

4) An end to countless counts. In this case, Conrad Black was charged originally with 14 crimes. That tends, through sheer weight of numbers, to favour a conviction on some counts and acquittal on others as being a kind of "moderate" "considered" "judicious" "compromise" that reasonable persons can all agree on. In other words, piling up the counts hands a huge advantage to the government. In this case, one of the 14 counts was dropped halfway through the trial, and another nine the jury acquitted Conrad on. But the four of the original 14 on which he was convicted are enough. One alone would be sufficient to ruin his life. This is the very definition of prosecutorial excess. Why not bring 20 charges or 30 or 45? After all, the odds of being acquitted of all 45 are much lower than those of being acquitted of 30 or 40.

5) An end to statute creep. One of the ugliest features of American justice is the way that laws designed to address very particular situations are allowed to metastasize and be applied to anything a prosecutor fancies. The RICO statute was supposed to be for mobsters and racketeers. Conrad Black is not a racketeer but he was nevertheless charged with racketeering. And, while the prosecutorial abuse of RICO is nothing new, the abuse of the "obstruction of justice" statutes in this case are unprecedented. Hitherto, the only obstruction charges that could be brought in regards to extra-territorial actions involved witness-tampering. In that security video at 10 Toronto Street, Conrad Black may be doing all manner of things, but he's not tampering with any witnesses. Nevertheless, a hitherto narrowly defined statute has now been massively expanded to enable prosecutors to characterize actions by foreign nationals on foreign soil in a way never contemplated by the relevant legislation. Statute creep is repugnant and should be stopped.

6) An end to de facto double jeopardy. Conrad Black is likely to wind up back in court to go through all the stuff he's been acquitted of one mo' time, this time in a Securities and Exchange Commission case. That would be a civil case, not a criminal one, and the US Attorney insists that the SEC is an entirely separate body. Oh, come on. The US Attorney and the SEC are both agencies of the US Government. They work in synchronicity. It's not the same as Nicole Brown's family suing OJ after the state's murder case flopped. In this instance, two arms of the same organization are bringing separate cases on exactly the same matters. That's double jeopardy - or, in fact, given the zealousness of the SEC, triple and quadruple jeopardy.

Labels: Judicial, Travesty of Justice, US

Labels: Democrat Sabotage, Judicial, Voter Fraud

DC Circuit Gitmo Decision: "Stinging" Defeat?

I haven't had a chance to study yesterday's decision from the U.S. Court of Appeals for the DC Circuit regarding detention proceedings for enemy combatants held at Guantanamo Bay. But it's already clear that the New York Times account this morning, portraying the ruling as a major defeat for the Bush administration, is misleading.

There's a dispute over what "the record" of a detention proceeding, called a Combatant Status Review Tribunal (CSRT), is. The government took the position that it is only the information presented at the CSRT; the combatants claim it is all information the government has pertaining to the detainee, whether it is presented at the CSRT or not. The combatants won on that issue, but the three-judge panel appears to have been very careful about deferring to the executive branch regarding what information is deemed classified; and it makes provision for the government to disclose very sensitive information only to the court, not the combatant.

I was also suspicious of the Times report because, after you wade sixteen paragraphs into the story — paragraphs which have very little to do with the case decided yesterday but are obviously intended to convey the impression that the sky is falling on the Bush administration's military tribunals — reporter William Glaberson drops this "oh, by the way" graph: "The ruling also included significant victories for the government, including a decision allowing the Pentagon to limit the subjects that the lawyers can discuss with detainees and authorizing special Pentagon teams to read the lawyers’ mail and remove unauthorized comments."

All the spin that's fit to print.

Labels: Guantanamo Bay, Islamic Fascism, Judicial

Labels: Judicial, Voter Fraud

On Monday, the Fourth Circuit Court of Appeals ruled that al Qaeda agent Ali Saleh Kahlah al-Marri can't be detained as an enemy combatant. The press corps is reporting--no, shouting, cheering, doing somersaults--that this is further proof that Bush Administration detainee policies are doomed to legal oblivion.

Well, here's a wager: This decision is the outlier and will be overturned on appeal, while most of the Administration's legal antiterror architecture will survive past January 20, 2009. Any takers?

There's no doubt that the 2-1 Fourth Circuit ruling in Al-Marri v. Wright is remarkable and dangerous in its sweeping judicial claims. Judges Diane Motz and Roger Gregory, both Bill Clinton nominees, ruled that a person like al-Marri does not qualify as an enemy combatant, because the U.S. cannot be "at war" with a private group like al Qaeda.

For the "enemy combatant" moniker to apply, the court said, a terrorist must have set foot in the soil "alongside" the forces of an enemy state--i.e., Iraq or Afghanistan. This is odd in itself, since by definition al Qaeda is a transnational organization. In some respects this makes it more of a security threat because there is no government the U.S. can hold responsible for its actions.

By such fancy footwork, the judges also get around the fact that their decision contradicts existing precedent in both their own circuit and the Supreme Court. In Hamdi v. Rumsfeld, the Supreme Court ruled that an American captured on a battlefield in Afghanistan could be designated an enemy combatant. Ditto Fourth Circuit precedent, which strengthened Hamdi with its ruling in the case of Jose Padilla, the U.S. citizen who was arrested at O'Hare airport with plans to detonate a dirty bomb.

Judges Motz and Gregory duck these precedents by ruling that al-Marri belongs in a different category, having never taken up arms on a foreign battlefield. He was merely trying to kill us here at home. Al-Marri came to the U.S. on a student visa as part of an al Qaeda "sleeper cell," looking for new opportunities to disrupt the U.S. financial system after September 11. Working for 9/11 honcho Khalid Sheikh Mohammed, he posed as a student at Bradley University while plotting. He was arrested for credit card fraud, and as his case worked through the court system, evidence of his al Qaeda affiliation built and he was transferred to a military brig in South Carolina.

There are few defined battlefields in the war on terror. So for new homegrown terrorist recruits, the Fourth Circuit decision is great news: If you join al Qaeda today, and get your training outside a wartime-environment, any violent acts you commit against the U.S. cannot qualify you as an enemy combatant or subject you to the system of military interrogation. You will instead be prosecuted in the U.S. criminal justice system, which would make any al Qaeda operative's day.

A case against a terrorist suspect would require a level of transparency that could compromise intelligence gathering and possibly the nation's security. Through the discovery process, the terrorist "defendant" would be privy to the sources that compromised him--sources that would thereby be made obsolete. And don't forget the domestic criminal rules of evidence. You think a lot of cases are dismissed on "technicalities" now?

Labels: Judicial, Judicial Activism, Supreme Court, Travesty of Justice, US Constitution

Labels: American Culture, Judicial, New Media

Are constant medical attention and round-the-clock police protection enough to preserve this delicate flower? Or will the thought of being away from the media for 20+ days cause her to wilt? All men have their breaking point, my friends. An anxious world waits and wonders.

Pardon me for injecting a little conservative thought into all of this, but I have very little sympathy for Ms. Hilton. She has had all of the advantages possible in society, and has shown herself contemptuous to any sense of responsibility. The screaming and crying jag in court only came after she had thrown away her chances to get lenient treatment by lying and evading responsibility for her actions.

Let's not forget why Paris Hilton went to jail. Last January, Hilton got convicted of driving drunk. That killed 18,000 people last year; it's no joke. Hilton didn't have to serve a day in jail for it, either. She got 36 months probation and had her license suspended (in November 2006). She was also ordered into an alcohol education program.

Within a month, she had been arrested twice for driving without a license, and still had not entered the program as ordered. The city prosecuted her for violating her probation and the court order, and convicted her last month. Her defense? She blamed everyone but herself, and even at this last court proceeding, wanted to appear only by telephone. The judge had to order her brought to court.

Paris Hilton is no child. She's twenty-six years old. She has all the money she needs to hire the best lawyers to represent her. For that matter, she had all the money she needed to hire a driver after her license got suspended. Not too many of us have those kinds of resources, but she does, and she decided to flout the law and her probation anyway.

Did her parents bring her up poorly? It seems that way. Does it matter now? No. She's far past the age for taking responsibility for her own actions. Instead, she has acted with contempt for the laws, for the safety of others on the road, and for the court in which she was called to answer for her actions. Paris Hilton deserves no sympathy for her sentence, nor for the crying jag and histrionics she displayed when she finally figured out that she had pushed her self-centeredness just a little too far.

Labels: American Culture, Judicial

This case has been a travesty since its start. The district attorney, Mike Nifong, made his case in public right from the start, acting very inappropriately and inflaming local passions against the accused. Later, it turned out that Nifong knew about the exculpatory DNA results but conspired with the lab to keep the results from the defendants -- an act that likely violated the law and the civil rights of the defendants, and certainly violated any sense of legal ethics.

The North Carolina Bar already has Nifong under investigation for his many questionable acts in this case. Nifong wanted to ride the Duke players all the way to re-election, and he managed to do that. The state Bar should make sure that Nifong does not profit from his unethical and potentially illegal misconduct. Disbarring him would force Nifong to resign his office, the least punishment he should receive for his actions in a year-long nightmare for three falsely-accused students.

Labels: Democrat, Judicial, Travesty of Justice

Labels: Homegrown Jihad, Islam, Islamic Fascism, Judicial

Labels: Corruption, Democrat, Judicial

Labels: Democrat Sabotage, Judicial, Media Bias, US Politics

Labels: Judicial, US

Labels: Intelligence War against Bush Admin, Judicial, Libby, Plame

Labels: Intelligence, Judicial, Media Bias, Media War, Sedition

Labels: Intelligence War against Bush Admin, Judicial, Libby, Media War

Labels: Cartoons, Intelligence War against Bush Admin, Judicial, Libby, US Politics