Fables of the reconstruction

"I Am The Government"

The judge who wrote this (which is funny but a pdf) turns out to be a power-mad drunk who sexually assaults his staff.

New Hampshire Legalizes Gay Marriage

Some good news for a bleak day.

The First Black President Nominates the First Hispanic Supreme Court Justice

And the first black President hands the Republican Party a dilemma: Further alienate the country's fastest-growing minority group or abandon their "Party of No" resistance strategy at the first test?

It's like the Civil War wreath-laying thing for Memorial Day. Yes, Obama continued the practice of honoring the dead traitors. It's an expression of his avowed Lincolnism - malice for none, charity toward all.  But he also began the practice of sending a wreath to the memorial to African-American Union soliders - the ones that the Confederates would routinely murder or enslave if they managed to capture them. The contrast is nice and instructive.

It's so nice we elected not just the smart one, but the shrewd one.

Department of Really Bad Ideas: Forging Homeland Security "Photography License"

I appreciate the impulse, but this was a fucking stupid thing to do.

ACLU of PA and Anthony Romero on LGBT Rights Tomorrow Night

Join the ACLU of Pennsylvania’s Greater Philadelphia Chapter for a frank discussion about the current state of LGBT rights and what we can do to ensure equality for ALL Americans.

Featuring:

Anthony Romero

Anthony Romero, Executive Director, National ACLU
Stephen Glassman, Chair, Pennsylvania Human Relations Commission

When: Monday, May 11, 2009, 7:00 p.m.

Where: The Hub, Cira Centre , 2929 Arch Street, Philadelphia
(across from 30th Street Station) Directions and parking information

You are invited to attend a wine and cheese reception before the program beginning at 6:15 p.m. at the same location.

Free & open to the public. No RSVP needed.

Questions? Contact us at [email protected] or 215-592-1513 x122.

I Must Have Missed That Memo

Shorter Michael Kinsley:

Even though Bush denied ordering people to be tortured and covered up the fact that he did, we're all responsible for it because he won the 2004 election. Prosecute yourself first!

Poor, Oppressed White Men

Mark Halperin reveals the big problem with Obama replacing Souter with a woman:
I love that the "white man" depicted is from a stock photo site. It doesn't matter to Halperin which white man gets the job, so long as one gets the job.

Souter to Retire

I figured Specter switching was part of a Supreme Court deal, but damn, that was fast.

Hopey-Changey: Administration Caves on Extremism Report

I'm sorry, so sorry:

A detailed account of the meeting from the American Legion states that "Hunched forward with head bowed, the Secretary of Homeland Security looked the National Commander of The American Legion straight in the eye and said, very quietly, 'I’m sorry, Dave.'"

"Nice hat, too."

Next I expect Napolitano to apologize to some militia and white-supremacist organizations.

Local Programming: ACLU Executive Director Anthony Romero on LGBT Rights

Monday, May 11th:

Join the ACLU of Pennsylvania’s Greater Philadelphia Chapter for a frank discussion about the current state of LGBT rights and what we can do to ensure equality for ALL Americans.

Featuring:

Anthony Romero

Anthony Romero, Executive Director, National ACLU
Stephen Glassman, Chair, Pennsylvania Human Relations Commission

When: Monday, May 11, 2009, 7:00 p.m.

Where: The Hub, Cira Centre , 2929 Arch Street, Philadelphia
(across from 30th Street Station) Directions and parking information

You are invited to attend a wine and cheese reception before the program beginning at 6:15 p.m. at the same location.

Free & open to the public. No RSVP needed.

Questions? Contact us at [email protected] or 215-592-1513 x122.

Hopey-Changey for CIA Torturors

They were just following orders:

The Justice Department will not prosecute CIA officers who used harsh interrogation techniques against terrorism suspects, Obama administration officials said this afternoon, as they released four Bush-era legal memos detailing practices that critics have likened to torture. ...

Both Obama and Holder for months have indicated a desire to look forward rather than ignite investigations that could alienate the intelligence community and ignite partisan rancor. "This is a time for reflection, not retribution," Obama said in his statement this afternoon even as he bemoaned the recent passing of a "dark and painful chapter in our history."  ...

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," [Attorney General Eric H. ] Holder said in a statement.

For the first time, officials said today that they would provide legal representation at no cost to CIA employees subjected to probes by international tribunals or U.S. congressional inquiries. They also said they would indemnify agency workers against any possible financial judgments.

What makes this decision worse for me is that I agree with it.

Tax Topic: Standard Deduction for Kidnapped Children

Tax Topic 357:

Tax Information for Parents of Kidnapped Children

You may claim a kidnapped child as your dependent if the following requirements are met:

1. The child must be presumed by law enforcement to have been kidnapped by someone who is not a member of your family or a member of the child's family, and
2. The child had, for the taxable year in which the kidnapping occurred, the same principal place of abode as the taxpayer for more than one-half of the portion of such year before the date of kidnapping.

If both of these requirements are met, the child may meet the requirements for purposes of determining:

• The dependency exemption
• The child tax credit, and
• Head of household or qualifying widow(er) with dependent child filing status.

This tax treatment will cease to apply as of your first tax year beginning after the calendar year in which either there is a determination that the child is dead or the child would have reached age 18, whichever occurs first.

I'm glad the IRS provides guidance for this situation, but why is there no deduction if the child is kidnapped by a family member? Is there a deduction available for the kidnapper in that case? It would be safe for them to do so, because I assume the IRS is not checking returns for the Social Security numbers of kidnapped children.

(Via.)

Taping Cops

Here's what happens when a black man drives a Jag:

[Terence] Jones says he remains "bothered and upset" that he was prosecuted for filing a false police report when he complained he was racially profiled in a 2007 traffic stop in Woolwich Township.

Jones, who is African American, had faced up to 18 months in prison; his restless nights dragged on longer than a year until his trial in December.

Visibly angered, Superior Court Judge M. Christine Allen-Jackson had called the case "chilling" when she found him not guilty. It was over, and Jones sobbed in relief. ...

A videotape of the stop, recorded by a camera in the police car, was never played for the grand jurors. It shows Patrolman Michael Schaeffer, who is white, pulling Jones over on a blustery night and asking why Jones was exiting an industrial park. ...

Jones believes the tape saved him.

"It would have been my word against the police officer's," he said. "I might have been doing 18 months in jail."

Or, as field negro says, he might be dead.

And here's what happens when you give unchecked authority to wage a war on (some) drugs:

Officer Jeffrey Cujdik told store owner Jose Duran that police were in search of tiny ziplock bags often used to package drugs. But, during the September 2007 raid, Cujdik and fellow squad members seemed much more interested in finding every video camera in the West Oak Lane store.

"I got like seven or eight eyes," shouted Officer Thomas Tolstoy, referring to the cameras, as the officers glanced up. "There's one outside. There is one, two, three, four in the aisles, and there's one right here somewhere."

For the next several minutes, Tolstoy and other Narcotics Field Unit officers systematically cut wires to cameras until those "eyes" could no longer see.

Then, after the officers arrested Duran and took him to jail, nearly $10,000 in cash and cartons of Marlboros and Newports were missing from the locked, unattended store, Duran alleges. The officers guzzled sodas and scarfed down fresh turkey hoagies, Little Debbie fudge brownies and Cheez-Its, he said.

What the officers didn't count on was that Duran's high-tech video system had a hidden backup hard-drive. The backup downloaded the footage to his private Web site before the wires were cut. ...

Duran's video bolsters allegations by eight other Philadelphia store owners who said that Cujdik and other officers destroyed or cut wires to surveillance cameras. Those store owners also said that after the wires were cut, cigarettes, batteries, cell phones, food and drinks were taken.

You get the point. Without cameras, some cops can and will lie your ass into prison or a grave, while covering up their own crimes.  I don't want to characterize the percentage of cops who are bad, because it's not relevant. It happens, that's a fact.

Cameras can protect you. But you have to have a camera on you, because you can't count on a police car dashboard camera or a surveillance camera. One idea I have had for a while is a rig involving cameras in your cellphone and wristwatch that would upload video and sound to a server on the web with a press of a button, as Mr. Duran's cameras did, so there would be no tape for them to destroy. Worst case scenario, if you wound up dead someone would be able to watch how it went down. I don't think cell phone data networks are fast enough yet to do that, but it is a product I would definitely think would take off when it is feasible.

Old Philly Law Firm to Close

The former Wolf, Block, Schorr & Solis-Cohen will dissolve:

Hit hard by defections of top lawyers and tight credit markets, partners at Wolf Block voted this afternoon to disband the 106-year-old law firm, a Philadelphia institution that for generations played a central role in the city's civic, legal and governmental affairs.

The decision was made during an emotional partners meeting at the firm's Center City offices. Lawyers from offices in other cities were video-conferenced in.

That's unbelievable. How terrible for the staff and associates.

Like many other firms, Wolf Block had been hit by a sharp fall-off in revenue as credit markets seized last fall and the housing market collapsed. But the firm also had been plagued with defections by top fee generators and faced further defections in the coming months. ...

Little more than a year ago, several of the firm's top litigators left to join the Center City firm of Hangley, Aronchik, Segal and Pudlin. That departure and others over the years tended to underscore Wolf Block's reputation as a firm wracked by internal discord.

I can confirm the discord, but always thought that was a feature, not a bug, at a idiosyncratic place like Wolf.

Bye-Bye, Vince

There was a sideshow about one juror twittering updates about deliberations but the judge smacked down the defense motion to replace that juror. Max Kennerly thinks that's the right result.

Reading Comprehension at the Washington Post

Check this out:
The second paragraph of the piece says "the court did not rule on the merits", which is, you know, the exact opposite of what the headline says.

Hopey-Changey of the Day: Obama Goes to Bat for Eavesdropping Telcos

American Constitution Society:

The Obama administration is defending the constitutionality of a law that shields telecommunications companies from legal challenges over their support of the Bush administration’s domestic spying program. Legal Beat reports that the Justice Department’s position in a brief filed in a California federal court “underscores the surprising degree to which the Obama administration – at least in court – is determined to shield President Bush’s controversial counter-terrorism policies from legal challenge or even public scrutiny.” According to Legal Beat, the administration is urging U.S. District Judge Vaughn R. Walker to dismiss “a raft of consolidated lawsuits” from customers of telecommunications companies who argue their privacy rights were violated when the companies helped Bush administration eavesdrop on the calls and e-mail.

I don't know the merits of the constitutional challenge - can't even imagine what it is, frankly - but whether it's a good case or not, Obama clearly wants to let sleeping dogs lie. How's that for half-assed analysis?

Hope-Changey of the Day

It's all about the prerogatives:

The Obama administration, siding with former President George W. Bush, is trying to kill a lawsuit that seeks to recover what could be millions of missing White House e-mails.

Two advocacy groups suing the Executive Office of the President say that large amounts of White House e-mail documenting Bush's eight years in office may still be missing, and that the government must undertake an extensive recovery effort. They expressed disappointment that Obama's Justice Department is continuing the Bush administration's bid to get the lawsuits dismissed.

A Good Time to Apply to Law School

Inky:

Law school applications typically rise in economic downturns, as job seekers give up hope and seek to ride out hard times in graduate school. But the increasingly uncertain job market, fears about how and when it will recover, and difficulty in finding student loans apparently have discouraged potential applicants. ...

The Law School Admissions Council, based in Newtown, Bucks County, which tracks law school admissions data and prepares the LSAT, the law school admissions exam, said that more than a year into the current recession, applications across the nation were off about 1 percent, at 56,481.

This probably doesn't apply to elite law schools and not all of the rest are subject to it, either. But overall, the pool of law school applicants is falling, so if you have good LSATs and can find funding, it's a good time to apply.

Facebook Relents on TOS Change - For Now

Terms of Use Update

A couple of weeks ago, we posted an update to our Terms of Use that we hoped would clarify some parts of it for our users. Over the past couple of days, we have received a lot of questions and comments about these updated terms and what they mean for people and their information. Because of the feedback we received, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised. For more information, visit the Facebook Blog.

The last sentence was there until just a second ago - now the blog itself is missing. Whatever, they gave up, temporarily.

Update: The ever-changing non-denial denial, er, clarification:

Over the past few days, we have received a lot of good feedback about the new terms we posted two weeks ago. Because of this response, we have decided to return to our previous Terms of Use while we resolve the issues that people have raised.

Almost there, dudes. Try to get someone involved in drafting your response who isn't pissed off at your members for, like, noticing shit.

Update on Facebook TOS: "Go Ahead and Be Outraged."

Amanda French:

With today’s outrage over Facebook’s newly altered Terms of Service at its peak, I figured I’d do a quick comparison of their terms of service as regards user-uploaded content to the terms specified by other social networking sites, just to see if said outrage is fully justified. It looks as though the finger-pointing at the Bush robots.txt file wasn’t justified, for instance, and I was guilty of spreading that story.

Conclusion? Go ahead and be outraged. Facebook’s claims to your content are extraordinarily grabby and arrogant.

She then breaks down the ways Facebook's TOS is way beyond what other sites use. Her objections come down to these two:

• No one else besides Facebook keeps the license to your stuff permanently, even after you have deleted your account.
• Facebook claims it has a license to any content on your other websites if you post a "Share this on Facebook" link on it.

The way I read the FB TOS, it's worse than that: I think they're claiming a license to any material you link to from FB. But whatever; it's incredibly overreaching.

Update 2/18/09: FB reverts to the old TOS, for now.

Facebook Gives Itself Permanent, Irrevocable License to Use Your Stuff and Your Image

Don't post pictures or other creative content to Facebook if you want to retain your rights to use it commercially:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof.

What all that means is if you ever post anything to Facebook, no matter how briefly, and even if you delete your account, they own rights to it. The right is non-exclusive, which means that they very generously allow you to use it, too.

(Via.)

Update: It's worse than I initially thought. Check out the definition of User Content:

"User Content" means any photos, text, link, audio, video, designs, ads and anything else that you Post on or through the Facebook Service. "Post" means to upload, post, transmit, share, store, link to or otherwise make available on or through the Facebook Service.

(Emphasis added.)

I think this makes clear that Facebook intends to take a license in all content of yours that you link to. So, if you link to a post on your blog, they claim they have a license to reprint your blog in its entirety.

A user group, People Against the new Terms of Service (TOS), has been created.

Update 2/18/09: Victory of sorts.

Things That Would Be Illegal in the US: Promotional Drawing Prize Includes Bag of Pot

The UK website for a movie called "The Wackness" has a no-purchase-necessary drawing in connection with promoting the film. The prize is a free trip to Amsterdam and a gram bag of pot from an apparently well-known coffeehouse.

Suffice to say, this offer could not be made by a U.S. company.

If Katie Says It's Legit, It's Legit

Here's an ad that's running on Facebook:

If you click it, it goes to a get-rich-quick site run by a guy named Kevin Hoeffer. The problem for Mr. Hoeffer, I think, is that it's unlikely that Katie Couric gave permission for her image to be used in a commercial ad. This is a violation of her right of publicity.

I just lobbed a message into Facebook informing them about it.

Ruth Bader Ginsburg Has Cancer

Oh, no:

US Supreme Court Justice Ruth Bader Ginsburg is receiving treatment for pancreatic cancer, the court says.

It says the 75-year-old justice had surgery in New York and is expected to remain in hospital for up to 10 days.

The Supreme Court said her illness appeared to be in its early stages. Pancreatic cancer is one of the deadliest forms of cancers.

(Via.)

You Can't Take Back a Pardon?

Interesting argument that Bush's attempt to revoke the pardon he granted to a Republican donor is ineffective:

The only argument the White House offered is that Toussie never received a paper copy of an individual warrant from the Office of the Pardon Attorney. All indications are that the administration cooked up this theory for this case. The master warrant that Bush signed and sealed did not say that he was ordering the pardon attorney to issue individual pardons on his behalf. It said that the people on the list were hereby pardoned. When the office called the recipients, it didn't tell them that the pardon was in the mail; it told them that they had been pardoned. And they accepted. ...

On his way out of office, President Bill Clinton pardoned more than a hundred people, including his brother, his longtime associate Susan McDougal, former housing secretary Henry Cisneros and, infamously, the financier Marc Rich. Because of the volume of Clinton's last-minute pardon jamboree, there was no way to deliver all of the individual warrants before George W. Bush took office. Some of them still have not been physically delivered.

But as president, Bush never purported to have the power to revoke any of these pardons. Surely he would have unpardoned Rich if he could have. And if Bush were right about Isaac Toussie, then he could have unpardoned both him and Rich. But he wasn't, and he couldn't.

Too Many Tabs Open

When I start counting on Firefox's restore session feature to make sure I don't lose the 37 tabs I have up, it's time to do a link dump. In no particular order:

In Britain, free speech supporters are pushing back against a new law which criminalizes certain kinds of porn:

Section 63 of the Criminal Justice and Immigration Act 2008 comes into force on 26 January and makes owning offending pictures a criminal offence punishable by up to three years' imprisonment. An image is deemed to be extreme if it "is grossly offensive, disgusting or otherwise of an obscene character" and portrays in any way an act which threatens a person's life, or which results or appears likely to result in serious injury to someone's genitals or breasts.

The law was passed earlier this year following a mother's emotive campaign after her daughter was killed by a man who claimed he was addicted to violent porn.

Opponents have no problems with two provisions banning images of bestiality or necrophilia - both of which are already illegal to do - but fear that the other definitions are so vaguely worded that even images of consenting adults engaging in fictional violence will now be outlawed, giving Britain the toughest anti-porn laws in Europe.

In related news, one of the last acts of the Bush administration was to drop new regulations on the disclosure of adult performer's ages, known as "2257 rules". You'd think such a reasonable goal couldn't be twisted to nefarious ends, but you'd be wrong:

Needless to say, from a sexually progressive standpoint, these new rules are, if anything, worse than the original....and serve the basic purpose of essentially using paperwork to drive the porn industry out of existence.

Presumably, implementation of these new 2257 regs have been suspended along with all other pending rules by the Obama administration. One delicious side effect of the rules, though, would be to criminalize the movies produced by anti-porn activists, which often use adult movie clips without any 2257 notices. I had intended to dig into the substance of the regs, but time ... yeah.

Adult Friendfinder, the largest adult dating site, is finally going public. The company plans to raise up to $460 million in the offering. I have written about AFF trying to go public in the past.

Two trials involving the distribution of the precursor chemical needed to make meth, with wildly different sentences. You'd probably never guess the difference is based on class and race.

You probably heard of this already by now, but Politifact is keeping track on the hundreds of promises Obama made during the campaign. He said to hold his administration accountable. Politifact doesn't have the Obamameter widget up yet, though.

How to preserve your Obama memorabilia.

Philly Beer Week is March 6th - 15th. Ten days seems like a week if you're really drunk, so there's that.

Down to a manageable 10 tabs now.

The Magic Words

So, Chief Justice Roberts re-administered the Oath of Office to Obama yesterday, as a result of Roberts' flub during the swearing-in on Tuesday.  First of all, obviously, how humiliating for the Chief to mess up the climactic moment of the biggest political event in 50 years. Did they not rehearse? I mean, really.

I find it fascinating that unless the right form of words are said, Obama is not President. The second swearing-in isn't just a formality or a chance to get the thing out smoothly, it's a lawyer's caution that someone may otherwise claim the person occupying the White House does not validly hold the office. Apparently, a similar problem has arisen in two prior inaugurations, with the same fix administered each time.

It also struck me how on Tuesday aggressively Roberts queried Obama at the end with the question, "So help you God?", which isn't part of the oath, of course.

Obama and Holder Make Bush Pardon for CIA Torturers Inevitable

Good news:

Attorney General-nominee Eric Holder Jr. says waterboarding is torture.

At his Senate confirmation on Thursday, Holder issued a clear answer to a question that two previous attorney generals have deftly avoided.

Holder unequivocally said the harsh interrogation tactic that has been used by the CIA is torture.

It probably was going to happen in any case, but this pronouncement means that Bush will be compelled to pardon all CIA interrogators and their supervisors for any crimes committed while questioning prisoners. Otherwise, those employees would be subject to prosecution and, worse from Bush's perspective, might take plea deals in exchange for rolling over on the higher-ups. Bush always takes care of his friends, so he can't let that happen. Also, institutionally the Bush family has a deep connection to the intelligence world through GHWB's short stint as DCI, the oil industry and military contractors.

Mold Spores, Commies and Crazy Libs

A reminder of what the mainstream of the Republican party is like:

"My tentative plans are to gerrymander all of those crazy libs right out of the section," [Bradley Schlozman] said in an e-mail in 2003. "I too get to work with mold spores, but here in Civil Rights, we call them Voting Section attorneys," he confided to another friend.

He hoped to get rid of the "Democrats" and "liberals" because they were "disloyal" and replace them with "real Americans" and "right-thinking Americans."

He appears to have succeeded by his standards, according to an inspector general's report released Tuesday. Among the newly hired lawyers whose political or ideological views could be discerned, 63 of 65 lawyers hired under Schlozman had Republican or conservative credentials, the report said.

Conservatives like to hype the threat of the ideological bent of liberals, but the fact is, it's projection. Mold spores? You know what? I look forward to running over your fucking asses with a bulldozer for at least 2, maybe 4 years. Fuck you.

One Way to Deal With Gitmo Detainees and Uphold the Rule of Law

Obama has announced that he will issue the order ending the military commissions and beginning the process of closing Gitmo, but figuring out what to do with some of the prisoners will take longer. Partly that's because we can't find anyone to take those we want to release because they're, you know, innocent and partly because there are some Obama doesn't want released because he thinks they're guilty. He says the evidence wouldn't stand up in court, but nevertheless he believes the charges are true.

There has been some gnashing of teeth from liberals and some crowing from conservatives over this perfectly predictable outcome. The presumption seems to be that either Obama must let these guys go right now and vindicate the Constitution, on one hand, or hold them and acknowledge that Bush and Cheney were right all along (about everything, presumably). That is, liberty and security are irreconcilable.

There is at least one way I can think of to give these guys a fair trial: Start over. The evidence against them currently is tainted by secrecy, hearsay and torture, so don't use it. Create a firewalled investigative team and send them into the field. Collect witness statements. Examine evidence. Put together a case. If there is enough to indict, then do it. Give them real lawyers - there are plenty of volunteers available - who can put on a real defense. If there isn't enough to indict, then let them go.

There are probably lots of other ways to accomplish the goal of protecting both freedom and safety.  That's what the legal system is supposed to be all about. But you have to start off with personnel who are acting in good faith, and starting January 20th, I think we'll have that.

Pretty Good for Thirty Seconds' Worth of Work

The Senate convened for thirty seconds yesterday, a procedural move designed to block some of Bush's last appointments from taking effect. The full list is here. It includes some 11 judges of the Circuit Courts of Appeal and 20 District Court judges.

The most useful 30 seconds in Congressional history.

Pre-Planning on Closing Gitmo: "The Difference Is That He Tries to Solve It"

As you probably know:

The Pentagon is drawing up plans to shut the military prison at Guantanamo Bay, Cuba, to be prepared for any order from President-elect Barack Obama, who has promised to close the controversial facility after he assumes office Jan. 20, a defense official said yesterday.

Defense Secretary Robert M. Gates instructed his staff to have a blueprint in place by the time of the inauguration in case Obama decides the closure of the facility is one of his "first orders of business," said Pentagon press secretary Geoff Morrell.

I read this to mean that Obama told Gates that closing Gitmo would be one of his first orders of business, and make him do this as the condition of him keeping the job. And by "this", I mean not just plan to close Gitmo, but to announce it publicly. It would be both appropriate and Obama-like if he were to announce in his inaugural address that the first executive order he will sign is the one directing Gates to begin the process of closing the prison.

Gates "has asked his team for a proposal on how to shut it down -- what would be required specifically to close it and move the detainees from that facility while at the same time, of course, ensuring that we protect the American people from some dangerous characters," Morrell said at a news briefing.

Any plan will probably address whether to also abolish the military commission system and, if so, what kind of legal framework can be substituted to put detainees on trial. The U.S. government will have to negotiate homes in third countries for as many as 60 detainees who have been cleared for release but cannot be returned to countries such as Uzbekistan and Libya because of fears they will be tortured. And the next administration will have to find or build appropriate detention facilities in the United States, as well as negotiate with local and state authorities who may not want terrorist suspects housed in prisons in their areas.

So what happens to the people we release?

European nations have begun intensive discussions both within and among their governments on whether to resettle detainees from the U.S. military prison at Guantanamo Bay, Cuba, as a significant overture to the incoming Obama administration, according to senior European officials and U.S. diplomats.

Funny/sad:

The willingness to consider accepting prisoners who cannot be returned to their home countries, because of fears they may be tortured there, represents a major change in attitude on the part of European governments. Repeated requests from the Bush administration that European allies accept some Guantanamo Bay detainees received only refusals.

The Bush administration "produced the problem," Karsten Voigt, coordinator of German-American cooperation at the German Foreign Ministry, said in a telephone interview. "With Obama, the difference is that he tries to solve it."

If goodwill were money, Bush would be history's greatest spendthrift.

Who is considering taking detainees? We don't know exactly:

At least half a dozen countries are considering resettlement, with only Germany and Portugal acknowledging it publicly thus far.

Okay, who else? My guesses are U.K., Spain, France and Poland. Not Italy, I don't think.

This is also well played:

European officials put out tentative feelers to Barack Obama's team to see whether it was willing to discuss the issue, but the incoming administration has rejected holding even informal talks until after the Jan. 20 inauguration, according to European and U.S. officials aware of the outreach.

"President-elect Obama has repeatedly said that he intends to close Guantanamo, and he will follow through on those commitments as president. There is one president at a time, and we intend to respect that," said Brooke Anderson, chief national security spokeswoman for the Obama transition team. ...

"I assume the new administration will have someone on a plane to Europe within minutes of Obama being sworn in," said Sarah E. Mendelson, director of the Human Rights and Security Initiative at the Center for Strategic and International Studies and the author of a report on closing Guantanamo Bay.

On a plane? I wouldn't be surprised if the envoy weren't already on the ground in Europe at the moment Obama's hand hits the bible.

So what is Obama willing to do to "solve it"? Again, we don't know, but the Europeans have some things they'd like to see:

The Europeans want a clear commitment to close Guantanamo Bay and an acceptance of common legal principles in the fight against terrorism, including those regarding the treatment of suspects, European officials said. A series of meetings between the United States and the European Union on a legal framework for combating terrorism has considerably narrowed differences on the application of human rights law, refugee law and humanitarian law, said [Portugal's Foreign Minister Luis] Amado and John B. Bellinger III, a legal adviser at the State Department.

Elsewhere in the article, a German official is quoted as saying the U.S. cannot place any restrictions or conditions on how European countries handle the detainees. They saw what happened with David Hicks and the embarrassment Bush caused the Aussie government.

The Europeans also want Obama to agree to transfer a small number of detainees to the United States before they attempt to sell a resettlement program to their own citizens.

"I believe that will happen," Amado said.

Interesting. There have been no talks with the Obama people, but Amado has reason to believe that the new administration will first take some innocent detainess before Europe does. That sounds to me that there have been talks with people close to but not in the transition. Which is how it should be.

One group likely to be settled here is 17 Chinese Uighurs who have been held for years at Guantanamo Bay. The Bush administration has acknowledged that the Uighurs are not enemy combatants, and in October a federal judge ordered them released into the United States.

In interagency discussions, the State Department has argued that the Uighurs be brought to the United States to help persuade Europe to resettle other detainees. But a State Department official, who spoke on the condition of anonymity because of the sensitivity of the issue, said the departments of Homeland Security and Justice, as well as White House officials, considered resettlement in the United States a "red-line" issue.

Yeah, it's a red-line issue for Bush to have to be confronted with the living, breathing evidence of his incompetence and ideological blinders. I hope some of the Uighurs settle in Dallas.

Ft. Dix Jury Reaches a Verdict: Guilty

The radio tells me the anonymous, sequestered jury has decided and the verdict will be announced in court at 1:15 p.m. There are a long list of charges and five defendants, so it will take some time.

Update: The United States District Court has a page up for the trial which includes the transcript, jury form and jury charge. Reading through the charge, it seems clear there will be convictions in the case, because the defendants are charged with weapons violations and being in the country illegally. I assume these things are easily proved because they don't rely on the informants' testimony. The question is whether they get convicted of conspiracy to kill U.S. soldiers and attempted murder, the principal charges.

Update: Guilty on conspiracy to kill servicemembers, not guilty of attempted murder. Bye-bye. That's life. Lesson: Don't be (a) stupid macho losers and (b) Muslim. I look forward to the FBI infiltrating bars and rod & gun clubs across the nation, looking for conspiracies of NRA members to assassinate the President. No slam on the jury; they just decided the case before them. The fault here rests with the cops and prosecutors in picking the people they will go after and who they won't.

The Fort Dix Trial Nears an End

The jury is in day five of deliberations in the trial of five foreign-born Muslim men in New Jersey who are accused of planning an assault on Ft. Dix. When this case was first reported, I called it "Mohamed Mitty", because the defendants sounded like they were fantasizing, rather than planning. (Fantasy is not yet a crime.) As Aquagirl said:

I have thought from the moment this story broke that these guys are no different from young disenfranchised losers all over the country, sitting around drinking beer and smoking dope and talking about how they're going to fuck up this or that dude. Or make a big score on a drug sale or rob a bank or ... 99% of which comes to nothing. But this is the big scary because these guys were Muslim instead of white. It just goes to prove how ridiculous the whole concept of this war on terror is. This is our big terror moment? Almost six years of fucking with the Constitution because of some pizza delivery guys whose mouths are writing checks their ass can't cash? Pathetic.

The trial has been entertaining for its descriptions of the enterprising work done by the FBI informants in the case. One of them, an illegal alien former used-car salesman facing deportation and with a prior conviction for fraud, was paid $240,000 and is heard on the tapes urging the stoner defendants on to jihad. At one point, one of the defendants became alarmed by the informant's request of a map of Ft. Dix and reported him to the FBI. Nothing came of it.

Another defendant is heard on the tapes saying that he wasn't going to hurt anyone, but you had to watch out, because if you're a Muslim in America even a normal conversation can get you charged with conspiracy.

The informant who requested the map now lives in an undisclosed location and is still drawing an FBI salary of $1,500 a week, with $1,400 per month for rent, pending the outcome of the trial, but complains he might be better off on welfare. His body mic inadvertantly picked up a conversation he had with a cousin back home in Egypt in which he advised the cousin to burn down the house of another family with whom he was having a business dispute and shoot the survivors. The business was pirating DVDs. The informant was also caught smoking pot four days before the trial started. I think I need a gig as an FBI informant. For a neat quarter-mil, I'll go shoot the shit with any half-baked hero you want to put on death row, and $1,400 per month would more than cover my mortgage.

The jury has asked for transcripts of the testimony about the informant asking the defendants to produce a map of Ft. Dix. I take this and the length of time they've been deliberating as hopeful signs they might acquit. But whatever they do, it sounds like they're taking the job seriously.

Have Yourself a Secular Little Nondenominational Holiday

Duncan says:

I've long been puzzled by the difficulty many - even fairly nonreligious people - have in seeing them as secular holidays grafted onto religious ones. Christmas was about trees and Santa and presents. Easter was about chocolate bunnies and colored eggs. While both have their roots in religious traditions, the secular traditions easily exist independently.

Which is correct. There is no Establishment Clause problem with a government entity putting up lights and wishing people a generic "Happy Holidays".

But then he says:

So, for holiday displays on public property, trees and lights are fine but nativity scenes and crosses aren't. It really isn't that complicated.

This conflates two issues: Semi-public forums for Free Speech purposes and the Establishment Clause. The Washington State case involves the state opening up a space for speech by private actors. Once it does that, it must not discriminate on the basis of viewpoint. So, if it takes religious messages, then it must take messages from all religions (or those who oppose religion). That's different from the government speaking. In the case of private speech on public property, "nativity scenes and crosses" are fine, iff all other religious displays are permitted, too. Olympia just found out what it means to do that.

Update: Ah, he was making a normative claim that government shouldn't open up limited public fora for religious expression. I tend to agree. Either you get sheepish conformity (with the attendant risk that people begin to think Religion X is the State Religion) or you get uproar. If  there were different displays with a whole lot of mutual respect and tolerance of diverse opinions - then it wouldn't be religion, now would it?

Big Ed Gets Letters

Vincent Lee Stone, Jr., of Tyrone, PA - a lovely, warm, Christian individual - sent Gov. Ed Rendell the following email:

Dear Big Ed, I pray every night that a Christian or Arab puts a bullet through your corrupt jewish skull. Jews are the SLIME of the earth. Your friends on wall st. have manipulated this well programed melt down. I.E. the thievery of good peoples life time savings. The 1858-1929 and the current depression are all caused by Jewish money manipulators. Historically, Jews are known as the the destroyers of nations due to usery and thievery habits. Crooks at large, sponsered by Israel. The world at large wants Israel bulldozed into the sea. Your smug demenor will not protect you ,nor your smile. Recall history,niether the Senate or public stood in the way of the praetorian guard setting Julius Ceasar straight.. Put your ego aside because you are not imune to public outrage. And when the s*** hits the fan and bullets are penatrating the egoes of corrupt officials we don't want to hear you WHINING while your bleeding to death. SIX MILLION MORE!!!!!!!!!!!!!!!!!!!!!!!

(Typos in the original; bowdlerization courtesy of the Pennsylvania State Police. I did not actually count the exclamation points.) Mr. Stone was interviewed by a state trooper and said:

I have been expecting you. I did send an email to the Governor. I dislike him and the government we have now both in Pennsylvania and the United States.I don't like Jewish people. I'm not going to harm the Governor. I don't care if someone else does or not.

Mr. Stone was charged with terroristic threatening under Pennsylvania law:

A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to ... otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.

(18 Pa.C.S.A. § 2706(a)(3).)

He was also charged with harassment:

A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person ... communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures ... .

(18 Pa.C.S.A. § 2709(a)(4).)

The third charge was ethnic intimidation:

A person commits the offense of ethnic intimidation if, with malicious intention toward the race, color, religion or national origin of another individual or group of individuals, he commits an offense under any other provision of this article ... with respect to such individual or his or her property or with respect to one or more members of such group or to their property.

(18 Pa.C.S.A. § 2710(a).)

The first two charges hinge on the existence of a threat having been made. The ethnic intimidation charge is just an add-on. So my question is, did Mr. Stone actually threaten the Governor? 

There are five sentences or sentence fragments that arguably could be interpreted as threatening:

1. I pray every night that a Christian or Arab puts a bullet through your corrupt jewish skull.
2. Your smug demenor will not protect you ,nor your smile.
3. Recall history,niether the Senate or public stood in the way of the praetorian guard setting Julius Ceasar straight.
4. And when the s*** hits the fan and bullets are penatrating the egoes of corrupt officials we don't want to hear you WHINING while your bleeding to death.
5. SIX MILLION MORE!!!!!!!!!!!!!!!!!!!!!!!

The remainder of the email is just ranting about Jews in general and doesn't relate to Rendell in particular.

I don't think any of the sentences listed, taken separately or together, communicate a clear threat. Sentences one and probably three are the expression of a hope that someone else murder Rendell.  Sentences two and four are similar. Sentence five expresses a desire for a second Holocaust. Taken together, it's nasty and insane but not a statement of intent to carry out an attack himself. The statement Mr. Stone gave to the trooper pretty well sums it up:  He doesn't like the government, Jews or Ed Rendell personally. He doesn't plan to harm Rendell, but hopes someone else does.

If I received such an email, I would certainly be alarmed by the venom and vicious racism, and would report it to the police. I certainly understand the State Police checking this nutcase out. I just don't think it's a crime to be a hate-filled anti-Semite. I've read worse things posted in comments on rightwing blogs. If Mr. Stone had sent this email to someone he didn't know with less clout than a governor, I doubt he would be facing charges.

The Meds Must Be Working

For the first time in, like, forever, I am finished with my annual legal education requirement way before the end of the year.

Quote of the Day: We Have Reached a Verdict

Max Kennerly:

I highlight these defense-verdict cases not because I think the jurors were right or wrong -- I have no idea how I would interpret the evidence, I only know press reports on this case -- but to point out that a San Francisco jury, begged for relief by sympathetic, impoverished plaintiffs, sitting in judgment of an immensely profitable defendant that's part of a hated industry, in consideration of facts that turn the stomach and inflame the passion, nonetheless still held in favor of the defendant.

Keep that in mind the next time some says that dumb jurors just take rich people's money and throw it at sympathetic plaintiffs.

Yes. Respect the jury's decision, however it comes out. They have the most difficult job in the room.

Important Questions Answered Long Ago

Benjamin Wittes op-ed:

Solving the Guantanamo problem means making important decisions about detention policy in combating terrorism more generally: When, if ever, should the United States engage in preventive detention of terrorism suspects? If and when it does, should it treat them as enemy combatants under the laws of war or under some other body of law, perhaps a new detention statute? What rights should they have? What should the government have to prove about them, to what standard of proof, and in what sort of forum?

Notwithstanding the idea projected by some members of his camp that closing Guantanamo is simply a matter of will, Obama cannot just wish these questions away. Indeed, they defy answers in the absence of a systematic and rigorous review of the detainee population itself, including the classified information about each prisoner.

It's remarkable to me that anyone would say that the law should proceed from "a systematic and rigorous review of the detainee population itself." That presumes a process - a review - that would in turn establish the level of process - a trial - that the prisoners would receive.

This isn't how we do it in America.

In this country, we start with the law - specifically, the law contained in the United States Constitution. From that law, we derive a set of principles and practices that are then applied to individual prisoners. In that application, we determine whether a specific individual is guilty or not guilty, and if guilty, what punishment they should receive.

Mr. Wittes wants to interpose a review that would determine what process - what law - should apply to each prisoner. This presumes the review would be a wider-ranging inquiry than a trial would be. It also presumes that this review would be more accurate in discerning the truth. But the reason the legal principles we uphold in the Constitution are the law is that we as a society believe they are the best way to arrive at the truth in a legal proceeding.

Mr. Wittes is quoted elsewhere as saying:

"There will be a sobering moment for enthusiasts of a 'try and release' regime when people start looking at the contents of those detainee files," said Benjamin Wittes, a Brookings Institution fellow and the author of "Law and the Long War," which advocates preventive detention backed by a national security court.

He assumes that the assertions contained in detainee files will be as impressive others as they apparently were to him. This just what Duncan calls the "GOP Daddies" tactic, in which somber men in suits presume to tell others that their judgment is better than theirs, and "that Something Very Serious Was Happening and Something Needs To Be Done." Note the phrase "try and release", a parallel to "catch and release" - a fishing term, but also an expression of futility in law enforcement and illegal immigration circles.  To Mr. Wittes, trying someone and finding them not guilty equals doing nothing at all.

By proposing this standardless review as a means of allocating the amount of process that is due each prisoner, Mr. Wittes is suggesting that we undermine our system of justice. If we mean to throw out the rules in these cases, it begs the question why we ever follow the rules that are already established in our legal system. These people are dangerous - even though no proof has yet been presented - this line of argument goes, so we have to allow government officials to say whether they should receive a fair trial, something less than a fair trial, or no trial at all. But government officials always say a defendant is dangerous before the trial happens, but we presume the defendant is innocent and make the government prove its case. If we abandon that principle in these cases, why have the principle at all?

Apply the law to the facts. If the government can't make its case, then the government should not be holding the prisoner. This is how we do it in this country, and that's how we should go about closing Gitmo.

Second Verse, Same as the First: Another Judge Orders Gitmo Prisoners Released

At least it's the semblance of legal process:

In the first hearing on the government’s evidence for holding detainees at the Guantánamo Bay detention camp for nearly seven years, a federal judge ruled on Thursday that five prisoners were being held an unlawfully [sic] and ordered their release. ...

Ruling from the bench, Judge Richard J. Leon of Federal District Court in Washington said that the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court.

I think the decision will be stayed pending appeal, just as the order to release the Uighurs was. While the odds are a little better than before the election, on balance I find it unlikely that anyone will be released until Obama takes office, no matter what the evidence is.

Please note that these prisoners were not detained in a war zone, much less captured on a battlefield. They were detained - note the passive voice - in Bosnia in 2001 and never got a hearing until now. Seven years.

The Bright Line

What Digby said:

I'm not trying to get ahead of myself. But Brennan is being talked up as the replacement for Michael McConnell and that's potentially problematic. If Obama comes out and explicitly says that there will be no more use of the techniques Greenwald lists, or anything else that can be construed as torture, and makes sure that his subordinates know he means exactly that, then I'm not quite as worried about the effects of this on foreign policy. But if he tries to split the baby or compromise on it, then he will automatically lose a huge portion of his moral authority both at home and abroad.

They could just go back to secretly torturing and spying as the government did in the past, but after all this --- and the political ramifications if it got out --- let's hope not. And anyway, that's not what the intelligence types want. They want immunity for torture (excuse me, "enhanced interrogation") and they want it to be public. I don't think there's any going back.

Torture is not negotiable and it can't be redefined or "smoothed out" or anything else. This one is a bright line. I give Obama the benefit of the doubt at this point, of course --- nothing's been announced. But I'm nervous. The institutional pressure is going to be acute and I'm not reassured by the presence of people like John Brennan. The fact that he isn't as bad as Dick Cheney just isn't good enough.

What Obama said, on the nomination of Alberto Gonzales to be Attorney General:

I did not hear Mr. Gonzales repudiate two and a half years of official U.S. policy which has defined torture so narrowly that only organ failure and death would qualify. A policy that he himself appears to have helped develop the dubious legal rationale for. Imagine that. If the entire world accepted the definition contained in the Department of Justice memos, we can only imagine what atrocities might befall our American POWs. How, in a world without such basic constraints would we feel about sending our sons and daughters to war? How, if we are willing to rationalize torture through legalisms and semantics, can we claim to our children, and the children of the world, that America is different, and represents a higher moral standard?

This policy isn't just a moral failure, it's a violation of half a century of international law. Yet while Mr. Gonzales' job was White House Counsel, he said nothing to the President.

He showed no ability to speak with responsible moral clarity then, and he's indicated that he still has no intention to speak such truths now. During his recent testimony, he refused to refute a conclusion of the torture memo which stated that the President has the power to override our laws when acting as Commander-in-Chief. Think about that -- the nation's top law enforcement officer telling its most powerful citizen that if the situation warrants, he can break the law from time to time.

The truth is, Mr. Gonzales has raised serious doubts about whether, given the choice between the Constitution and the President's political agenda, he would put our Constitution first. And that is why I simply cannot support his nomination for Attorney General.

I tend to believe someone who (a) taught Con Law and (b) made such a sweeping declaration about international law means what he says. The fact that the people with the relevant experience necessary to the transition are tainted by association with the prior regime's policies is not surprising or overly worrying to me. The question is, does the President-elect maintain the position he took as a candidate, or not? I'm betting yes.

Benefits of an Obama Administration: Part III

It's called the Department of Justice for a reason again.

Obama Plans for Closing Gitmo; No Word on Other Secret Prisons

Good, Obama will close Gitmo:

Under plans being put together in Obama's camp, some [Guantánamo Bay] detainees would be released and many others would be prosecuted in U.S. criminal courts.

Potentially bad:

A third group of detainees -- the ones whose cases are most entangled in highly classified information -- might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks. Advisers participating directly in the planning spoke on condition of anonymity because the plans aren't final.

The protections built into such a new court will be the key to whether these people get treated fairly.

Obama has said the civilian and military court-martial systems provide ''a framework for dealing with the terrorists,'' and [Obama legal adviser Prof. Laurence] Tribe said the administration would look to those venues before creating a new legal system. But discussions of what a new system would look like have already started.

''It would have to be some sort of hybrid that involves military commissions that actually administer justice rather than just serve as kangaroo courts,'' Tribe said. ''It will have to both be and appear to be fundamentally fair in light of the circumstances. I think people are going to give an Obama administration the benefit of the doubt in that regard.''

Though a hybrid court may be unpopular, other advisers and Democrats involved in the Guantanamo Bay discussions say Obama has few other options.

I'd just note that long before 9/11, Tribe was no doctrinaire liberal on national security trial policy. Although conservatives like to portray him cartoonishly, he's been thinking about these issues for some time. When he says "fundamentally fair in light of the circumstances", he means it.

This hybrid system sounds like the Orwellian "National Security Courts" that I thought back in May Bush would spring on us:

The key issues, as I see it, are truly impartial juries and viable avenues of appeal against questionable evidence, like hearsay. Clearly, it's not possible politically to argue for full trial rights, but we can make the case that enabling defendants to vigorously defend themselves on the facts will produce better decisions and raise our standing in the eyes of the world.

The ACLU has a stronger stance:

On the first day in office, the president should order the shutdown of the Guantánamo Bay detention facility and restoration of the rule of law for the detainees now held there. Specifically, the president should order the prompt shutdown of the detention facility, the transfer of any prisoners charged with a crime to a facility within the continental United States for trial in a federal criminal court or before a military court-martial, and the transfer of all uncharged detainees to countries where they will not be abused or imprisoned without charge.

Court-martial or federal criminal trial, or nothing. They're not happy about the hybrid system idea:

"I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake,'' said Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees. ''We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems.''

I think this is a fine negotiating position but there is little chance we will end up there. The entire third group of prisoners - which probably includes some incredibly dangerous people - would have to be released because none of the evidence against them would be admissible. No one would take them except countries that sponsor terrorism, and once released, they'd go right back to attacking U.S. forces or civilians around the world. Congress and President Obama would be rightly pilloried by the public for letting them out.

There are several areas that I see that have to be worked out:

• The biggest problem is how to deal with evidence that is inadmissible under the Federal Rules of Evidence, because it is inadmissible hearsay, or because testimony or confessions were obtained through torture, or because the chain of custody is considered reliable for intelligence-gathering purposes but would not satisfy an Article III judge. The goal here has to be the reliability of the evidence and the ability of the jury to assess how credible it is.
• Next is the right of the defendants to confront witnesses and see the evidence against them. Can spies and informants be cross-examined without putting their lives in danger? Methods of gathering signals intelligence might have to be revealed to jurors as well as the defendants. Will defendants be given the time and resources necessary to conduct their own investigations?
• Who will be the jurors? It has to be civilians, in my view. Military juries are for courts martial.
• Appeal rights: Specifically, to which court may an appeal be made, what bases for appeal will be available and what level of scrutiny will they be given?
• Sentencing: Will the death penalty be an option? For lengthy prison terms, will there be any process by which a defendant could seek release down the road if circumstances change?

To be honest, I can imagine so many insoluble scenarios here that I couldn't even suggest what to do. It's yet another area that Bush has royally screwed us. The best thing I can hope for is that most of the prisoners are people who we can just let go or give normal federal criminal trials to, and the number of prisoners in the third category is small.

Also, the article only mentions Gitmo. Although Gitmo is large and symbolically important, we reportedly have secret prisons all over the world. Is Obama going to include people being held there for long periods of time in this program?

Benefits of an Obama Administration: Part I

Justice David Souter, age 69.
Justice Stephen Breyer, age 70.
Justice Ruth Bader Ginsburg, age 75.
Justice John Paul Stevens, age 88.

Part one of a semi-regular feature.

Socialist Police Persecute McCain Supporter Exercising 2nd Amendment Rights Against Obama Thugs!

This site doesn't dispense legal advice, but in no jurisdiction I am aware of is it okay to use deadly force to stop someone from stealing a sign from your front yard:

A teenager was wounded in the arm by a man who said he wanted to stop the boy and another from taking his John McCain yard sign [in Levittsburg, Ohio]. Warren Township police Lt. Don Bishop said 50-year-old Kenneth Rowles told officers he got out a .22-caliber rifle Saturday afternoon to fire warning shots, not hurt anyone. The two shots hit the van the teens were in.

Rowles pleaded not guilty Monday to felonious assault. A preliminary hearing was set for Nov. 4, Election Day. ...

[Lt. Bishop] said there was no evidence the thefts were anything more than teen vandalism. No charges were filed against the boys.

I predict he'll walk. (The clue is how they chose to charge him. If they were serious, they'd have charged him with attempted murder and plead him down to felonious assault.) He's lucky he didn't kill anyone, because then even Ohio Republicans wouldn't be able to save him from jail time. Under Ohio law, a conviction for felonious assault carries a minimum 2-year prison sentence.

Ted Stevens Guilty on All Counts

Bye-bye:

A federal jury on Monday found Republican Sen. Ted Stevens guilty of lying on his financial disclosure forms, ending in disgrace the four-decade Senate career of a man whose imprint on Alaska dates to before statehood.

It's the highest-profile felony conviction in a sweeping four-year federal investigation into corruption in Alaska politics, and an almost-unprecedented conviction by a jury of a sitting U.S. senator.

Jurors found that Stevens, 84, willfully filed false financial-disclosure forms that hid such gifts as renovations that doubled the size of his home. Those gifts, valued at as much as $250,000 over seven years, came mostly from his former friend Bill Allen, the star prosecution witness in Stevens’ trial and the former owner of Veco Corp. The oil field-services company was one of Alaska's largest private employers before Allen, caught up in the federal corruption probe, was forced to sell it last year.

It'll be interesting to see whether he wins his election.

Stevens Jury Circus Continues

Cue the calliope:

A federal judge on Sunday dismissed one of the jurors in the trial of Senator Ted Stevens after losing contact with her after her father’s death.

Wow. She just took off. I understand, her dad died, but someone from the family could make a phone call. No? Okay.

Judge Emmet G. Sullivan of Federal District Court plans to seat an alternate juror on Monday morning and to order the jury to start their deliberations from the beginning.

Apparently, the prior problems with Juror No. 9 have calmed down, after Judge Sullivan gave the whole panel a sermonette on "civility and mutual respect".

I would have imagined this is good news for Stevens, but apparently not:

The move was a setback to Mr. Stevens, Republican of Alaska, who is trying to hold onto his seat and wanted a verdict before Election Day.

I wouldn't mind a conviction on Friday. Otherwise, take your time, guys.

Yep, Ted Stevens's Jury Definitely In Trouble

Eleven of the 12 have asked the judge to toss one of the other jurors. This is on the second day of deliberations:

The judge in Sen. Ted Stevens' corruption trial was determining how to proceed Thursday after 11 of the jurors asked that the 12th be removed because she's had "violent outbursts" with other jurors and has been "rude, disrespectful and unreasonable."

The juror in question, No. 9, works for the National Guard as a bookkeeper.

The judge read from the note the jury foreman sent him, which began, "We the jury request that juror No. 9 be removed from the jury."

"She is being rude, disrespectful and unreasonable," the note said. "She has had violent outbursts with other jurors and that's not helping anyone. The jurors are getting off-course. She's not following the laws and rules that are being stipulated to in the main instructions."

A complex trial almost always results in the jury eventually getting testy with each other at least. But that usually requires some time, locking them all into a small room for several days. That's normal. When things start bad, it's not normal. It's a sign you're heading for a mistrial.

Yesterday, when they broke early because things were getting "stressful", I guessed there was one juror who wanted an immediate acquittal. In my mind, though, the profile was male, although the bookkeeper thing fits perfectly.  There are these people who, when presented with complex situations - like parsing an 80-page jury instruction after listening to lots of evidence - shut down and come to a conclusion without reference to facts. Again, I am just guessing, but I think what's happening here is a person who isn't too bright is feeling overwhelmed and hostile - and finds that as a juror, she can lash out and no one can readily tell her to stop.

I would say the judge is in a tough spot. It seems clear to me if he leaves No. 9 on the panel, they will hang. But he can't just remove someone because they're disagreeable. He has to wait to see if they can work it out, but the longer he waits, the tougher it will be on the rest of the jury when No. 9 is eventually replaced. This unpleasant person has a view - not guilty, is my guess, but whatever it is - and she's making enemies of the rest of the jury. The longer the judge waits, the harder it becomes for the jury to start over with an open mind, because they won't be able to forget that No. 9 was in favor of that view.

If I were the judge, I would wait until tomorrow in case the jurors can work something out among themselves. If it doesn't get better, then I'd bring each of them in individually with counsel present and ask whether the situation is preventing the panel from deliberating.  If I can find grounds to toss No. 9 without getting overturned on appeal, I'd do it. Obviously, if I were Stevens's counsel, I'd fight like hell to keep No. 9 on the panel and then hope for a mistrial.

Whatever happens, when this is all over, the authorities need to find out if anyone built a house for No. 9 recently.

Felons and the Mentally Ill Have the Constitutional Right to Own Guns

In the course of an article on right-wing judges upset with the Supreme Court's activist ruling in Heller v. D.C., which struck down D.C.'s gun ban and found for the first time an individual constitutional right to own a gun:

Judge [ J. Harvie ] Wilkinson [III] saved particular scorn for a brief passage in Justice Scalia’s opinion that seemed to endorse a variety of restrictions on gun ownership. “Nothing in our opinion,” Justice Scalia wrote, “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by [felons or] the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. “The Constitution’s text,” he wrote, “has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.”

[Heller's lawyer, Robert A.] Levy, too, said he was not a fan of the passage. “I would have preferred that that not have been there,” he said. “It created more confusion than light.”

I think Scalia's little aside about "longstanding prohibitions" is going to come back to bite him. (Weirdly, the NYTimes article misquotes the decision by dropping the "felons" part. PDF of the decision is here.) The part about laws imposing conditions and qualifications on the commercial sale of arms, for example. Is there a federal licensing requirement for businesses to sell books? No, because the Free Speech clause of the First Amendment would prohibit it, because the seller of books stands in the shoes of the reader of books in terms of the constitutional right to expression. Why, then, must a seller of guns be licensed to sell guns, if the buyers of guns have a constitutional right to buy them?

Also, if someone is adjudicated mentally ill once, and then is treated and has successfully controlled her illness, why is she still subject to a ban on ownership of guns? What other illnesses deprive people of their fundamental constitutional rights? Would a law depriving diabetics of the right to buy candy be constitutional?

But what I really want to focus on is the part about felons. If Heller stands for the proposition that outright bans on the ownership of guns violates the Second Amendment, why would a lifetime, complete ban on gun ownership by felons and the mentally ill be constitutional? Are there other fundamental constitutional rights that we deprive convicted criminals of for their entire lives?

Sometimes, we do. If the crime warrants a sentence of life in prison, then that person's civil liberties are restricted for their entire life. Also, if there is a nexus between the exercise of the right and the crime committed, we sometimes deprive convicted criminals of that right even after they are released from incarceration. For example, someone convicted of luring children online to meet for sex might be released from prison only on condition that he not use a computer to access the internet.  That sort of lifetime, complete ban on the Free Speech right to use a medium of communication seems reasonable.

Similarly, it seems likely that after Heller a court will still uphold a lifetime ban on gun ownership for someone who has been convicted of a violent crime with a gun. But many states' prohibitions on gun ownership apply to a wide range of felonies, not all of which involve guns or even violence. Pennsylvania's statute, for example, says:

A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.

61 Pa. C. S. sec. 6105(a)(1). Subsections (b) and (c) contain a long and varied list of crimes, behaviors and statuses which merit the loss of the right to own a gun, each of which might be worthy of their own law review article. They include theft, burglary, receiving stolen goods, multiple instances of driving under the influence, and most importantly in terms of numbers, drug crimes.

About 5.3 million Americans have felony convictions (pdf). To the extent that their crimes did not involve guns or even violence, how can they constitutionally be deprived of their fundamental right to own a gun without due process and an individuated showing by the state that there are grounds for such deprivation? No matter what dicta Justice Scalia throws around about "longstanding prohibitions", I think there is no principled distinction between the complete, lifetime ban on gun ownership for all civilian residents of D.C. and a complete, lifetime ban on gun ownership for all persons convicted once of felony drug possession. Eventually, a court will find that felons have the right to own guns under Heller, or the Supreme Court will have to cabin Heller's logic arbitrarily.

Either way, I just hope Scalia is still around to have to face the consequences of his own actions.