Supreme Court on The Huffington Post

New Haven's White Firefighters Win Promotions

2009-11-25T16:30:05Z

NEW HAVEN, Conn. (AP)-- A federal judge has ordered Connecticut officials to promote 14 firefighters who won a reverse discrimination case in a landmark ruling by the U.S. Supreme Court.

U.S. District Judge Janet Bond Arterton ruled Tuesday that the civil rights of white New Haven firefighters were violated when city officials threw out the results of a 2003 promotion exam when too few minorities did well.

Her ruling followed the Supreme Court's instructions.

In 2006, Arterton had thrown out the white firefighters' lawsuit. A federal appeals court upheld her decision before the Supreme Court overturned both rulings in June.

City spokeswoman Jessica Mayorga said Tuesday that New Haven intends to promote the firefighters "as soon as practicable."

Six firefighters are set to be promoted to captain and eight to lieutenant.

The case became an issue in confirmation hearings for Supreme Court Justice Sonia Sotomayor. She ruled against the firefighters when she was a federal appeals court judge.

Watch a news report about the promotions

Alexandra Cox: Why Brain Science Is Bad for Juvenile Justice

2009-11-23T15:54:08Z

The day Christopher Simmons was sentenced to death row in Missouri for a crime he committed when he was seventeen, he probably didn't know his opportunity for freedom lay in the nether regions of his frontal lobe. Simmons' case, which led the U.S. Supreme Court to overturn the death penalty for individuals under eighteen, rested in part on neuroscientific research which shows some of the ways that the adolescent brain is still developing. Simmons' case was a victory for those who are seeking a sense of justice and fairness in the application of the law, but the use of this research, and its recent proliferation in the media, in policy papers, and in two Supreme Court cases heard last week, raises considerable concerns about the research's impact on the civil rights and liberties of young offenders.

We should question how hard this 'hard' science about the brain works to fight the use of adult-level penalties against young people. Reformers' reliance on this research raises some troubling questions about the drift of reform strategies in the juvenile justice system towards natural science at the cost of engagement with social science, which demonstrates that young people charged with crimes often suffer from a variety of socio-structural disadvantages that may play a role in their entry into the juvenile justice system. This research also shows that young people's pathways out of punishment rely on the development of social capital -- relationships, networks, and opportunities -- as much as they do on the development of their human capacities.

This brain research may convince the public that development is a fixed, undisputed path toward rational thought, thus further marginalizing those children who stray from the path of 'normal' development. Knowledge about developmental stages is in fact highly contested, as educationalists will attest. Our preoccupation with developmental stages implies that children are in the process of becoming, rather than being individuals with valid moral and ethical claims to stake in the process of their punishment.

Secondly, advocates' uses of brain research, and their reliance on 'hard' science, raise some potentially troubling questions about the potential impact of this science on ideas about human potential. Nikolas Rose of the BIOS Research Centre for the study of Bioscience, Biomedicine, Biotechnology and Society at the London School of Economics argues that the brain has become the repository of what was once left to the psyche. He suggests that new technologies which draw from brain research, and in particular those that seek out abnormalities in the human brain, raise important questions about how notions of identity and human potential might be altered by this research. He and his colleague Ilina Singh argue that new ideas about risk or susceptibility (to psychiatric disorders, for example) that emerge through the study of the brain could potentially be used in stigmatizing or coercive ways. Legal thinkers have raised related civil liberties concerns about the uses of neuroscience in legal proceedings.

This research may also push us toward the notion that once a child has reached adulthood, his or her opportunity for change may be eclipsed. To use the language of the majority opinion of the Supreme Court in Roper v. Simmons, adults who commit crimes may soon be seen to have entered the realm of the "irretrievably depraved." If children 'deserve' less punitive sanctions, then should we assume that adults 'deserve' more serious ones?

This research may lead to a more deeply paternalistic approach in the treatment of young people in a legal system that is already rooted in -- and arguably limited by -- the idea of children in need of protection and governmental intervention. We need to engage more critically with the stories we have about young people in the criminal justice system that are rooted in their experiences as individuals and as members of a social and political community, and which begin to convey some of the consequences of punishment on their abilities to flourish as human beings and to express their dignity. As the Australian scholar Judith Bessant argues, the brain scan is an inadequate substitute for the more holistic, empirically grounded knowledge we have of young people in the criminal justice system.

The Supreme Court will decide next year about whether they will allow the use of life without parole for juvenile offenders. Though these cases cover relatively narrow issues, this is an opportune time to start raising more serious questions about meaningfully fighting the extraordinary levels of punitiveness toward young people and adults that should be a source of shame for our nation

Mike Stark: Senator Vitter on Video: I Don't Know if Loving Was Correctly Decided

2009-11-18T14:07:59Z

Vitter graduated Tulane Law School in 1988. Loving v. Virginia, decided in 1967, was a unanimous Supreme Court decision that declared state anti-miscegenation (interracial marriage) laws unconstitutional. It is one of the bedrock civil rights cases, right up there with Brown. It is simply not credible for any lawyer to claim ignorance when asked about Loving.

Anyway, this question did not come out of the blue. Several weeks ago, I invited Senator Vitter to condemn the racist Lousiana judge that refused to issue a marriage license to an interracial couple. Vitter passed, simply smiling at me as the elevator doors closed on him.

When other reporters asked about it, his press shop put out a statement:

First, Sen. Vitter thinks that all judges should follow the law as written and not make it up as they go along. Second, it would be amazing for anyone to do a story based on this fringe, left-wing political hack's blog -- he's been handcuffed and detained in the past over his guerrilla tactics."

Still not one word of criticism for the racist judge! (And yes, the latter half of the quote referred to yours truly, but that's another story for another day. For now, just note the absence of the word "arrested".)

So I decided to concentrate on the first half of the question. I emailed Vitter's Press Secretary and asked if Vitter believed Loving had been decided correctly or if it was a case of unwarranted judicial activism. I let them know that if they sent me back a clarification, I wouldn't have to ask the Senator on camera. Of course, if I did see the Senator before I received their statement, hopefully he would be prepared to answer the question.

Almost a month had passed when I ran into the Senator yesterday.

Here is the result:

When you see train-wrecks like this, I think it is only natural to look for some sort of explanation. Well, I think I may have found one. In the next video, shot from outside Vitter's office, look closely at what is on the television:

More from StarkReports.com

Sonia Sotomayor Has Achieved Celeb Status As Supreme Court Justice

2009-11-17T09:53:09Z

By Jesse J. Holland, AP

WASHINGTON (AP) - Apparently, no one told Sonia Sotomayor that Supreme Court justices are supposed to be circumspect, emerging from their marble palace mainly to dispense legal wisdom to law schools, judges' conferences and lawyers' meetings.

Since becoming the first Hispanic justice, Sotomayor has mamboed with movie stars, exchanged smooches with musicians at the White House and thrown out the first pitch for her beloved New York Yankees. A famous jazz composer even wrote a song about her: "Wise Latina Woman."

In short, Sotomayor has become a celebrity - all without having made a single major decision at the nation's highest court.

It's not that other justices don't have their own particular glamour.

Ruth Bader Ginsburg and Antonin Scalia - both opera lovers - recently had roles in the opening performance of "Ariadne auf Naxos" for the Washington National Opera. Other justices have done tours to promote their books.

But that kind of fame rarely reaches the man on the street.

Few Americans can name most of the justices. "Many, many, many more Americans can name the Seven Dwarfs than they can the people on the Supreme Court," said Bob Thompson, professor of television and popular culture at Syracuse University.

No so for Sotomayor.

Autograph seekers, picture takers and well-wishers hound her wherever she goes, months after her confirmation hearing, swearing-in and first appearance in the courtroom.

Recently, the new justice was swarmed by people with cameras the minute she appeared in the Grand Foyer of the White House during a celebration of Latino music.

The throng around her didn't part until the hundreds of concert guests were ushered to their seats in a giant tent on the South Lawn, and it quickly regrouped once the concert ended. Some of those lucky enough to get photos with the justice squealed and proudly displayed their happy-snaps for others in the crowd.

At that event, only Sotomayor got a standing ovation when President Barack Obama read a list of famous Hispanics from government, music and acting who were present, including George Lopez, Jimmy Smits, Los Lobos, Sheila E. and Eva Longoria Parker. Parker later on pulled Sotomayor on stage with all the musicians and the first family as everyone hugged and exchanged smooches during the finale.

Hollywood and the world of music are also paying attention to her. One of the most popular YouTube clips of Sotomayor is her confidently mamboing - in heels! - with "La Bamba" actor Esai Morales at a National Hispanic Foundation for the Arts just weeks after she was confirmed.

The song Sotomayor and Morales were dancing to? Bobby Sanabria's "Sotomayor Mambo."

And that's not the only song dedicated to her. Grammy award-winning jazzman Arturo O'Farrill and the Afro Latin Jazz Orchestra this month debuted "Wise Latina Woman," penned by O'Farrill and commissioned by The Bronx Museum of the Arts and Symphony Space in honor of Sotomayor.

The title references one of Sotomayor's most famous statements: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." That remark was criticized over and over by her detractors during her confirmation hearing. Since then it has been adopted by her fans as a slogan. Now it even shows up on T-shirts and other memorabilia.

It's not as if Sotomayor is pushing this public recognition.

In fact, apart from a C-SPAN program that interviewed all the justices, she is refusing television, magazine and newspaper interview requests, including a request for comment from The Associated Press for this story. Sotomayor even nixed plans by famed photographer Annie Liebowitz to shoot her for a photo spread in Vogue magazine.

She did allow Latina magazine to photograph her inside the Supreme Court building, but wouldn't submit to a formal interview even though a friend wrote the accompanying article. Wearing her black robe, the justice appeared on the cover of the latest issue prominently displaying her bright red fingernails, which White House aides had persuaded her to repolish in a demure neutral shade last July for her Senate confirmation hearing.

Even though she's avoided interviews, people recognize her everywhere. "There are people who can identify her in a line of pictures who couldn't identify some of the people who are big movie stars," Thompson said.

Part of the adulation stems from the historic nature of her appointment: the first Hispanic on the court, and only the third female, after retired Justice Sandra Day O'Connor and current Justice Ruth Bader Ginsburg.

"She is the first Latino, Latina to sit on the Supreme Court and that's powerful. She's a powerful role model," said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. "She will have an effect on Latino children akin to the effect that the election of the first African-American president has had and will have on African American childcare and that's encouraging. And for all of that she deservedly gets treated like a rock star."

O'Connor got her share of celebrity treatment when she became the court's first female justice in 1981.

"If there was a state dinner, an exclusive theater opening, even a new panda at the National Zoo, O'Connor was there," author and reporter Joan Biskupic said in her biography of O'Connor.

But O'Connor was appointed before the 24-hour news cycle and YouTube, where video of anything can show up anytime. A recent search of YouTube for Sotomayor brought up more than 2,000 videos, double the amount for any other sitting justice.

That kind of attention will make it difficult for Sotomayor to fade into the background, like her colleagues.

"I'm almost never recognized, which is nice. I just do the shopping and so forth and nobody knows who it is," Justice John Paul Stevens, the court's senior justice who has been on the court since 1975, said in an interview with C-SPAN.

Sotomayor is also only the third nonwhite justice. The late Thurgood Marshall joined the court in 1967, the court's first African-American justice and first nonwhite. Justice Clarence Thomas, who replaced Marshall, still serves on the court with Sotomayor.

Times were much different when Marshall arrived. The justice would tell stories of being mistaken for an elevator operator inside the Supreme Court, recalled one of his former clerks, Mark Tushnet.

These days, Thomas says he's recognized as a justice wherever he goes. "It's easier to recognize ... to pick one person out who's different," Thomas told C-SPAN.

Thompson, the Syracuse professor, said it could be a good thing for Sotomayor's fame to linger if it draws attention away from reality television stars and the like and toward the court.

Supreme Court justices "should be the celebrities," Thompson said. "Given the nature of our governmental system, these are the people that every citizen should know. These are important people."

___

Associated Press writer Nancy Benac contributed to this report.

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Shannyn Moore: Palin's Oily Lies Drip from the Pages of Going Rogue

2009-11-16T04:27:05Z

I know facts aren't going to matter to many people buying Sarah Palin's, Going Rogue. Facts certainly didn't matter to folks who voted for her.

According to the "fact checkers":

PALIN: Welcomes last year's Supreme Court decision deciding punitive damages for victims of the nation's largest oil spill tragedy, the Exxon Valdez disaster, stating it had taken 20 years to achieve victory. As governor, she says, she'd had the state argue in favor of the victims, and she says the court's ruling went "in favor of the people." Finally, she writes, Alaskans could recover some of their losses.

THE FACTS: That response is at odds with her reaction at the time to the ruling, which resolved the long-running case by reducing punitive damages for victims to $500 million from $2.5 billion. Environmentalists and plaintiffs' lawyers decried the ruling as a slap at the victims and Palin herself said she was "extremely disappointed." She said the justices had gutted a jury decision favoring higher damage awards, the Anchorage Daily News reported. "It's tragic that so many Alaska fishermen and their families have had their lives put on hold waiting for this decision," she said, noting many had died "while waiting for justice."

When Sarah Palin was asked by Katie Couric what Supreme Court decisions other than Roe v. Wade she disagreed with, she couldn't think of one. NOT ONE! Sarah squandered an opportunity, the perfect chance to tell America our story, an Alaskan story: dozens of suicides, thousands sick from clean up, tens of thousands bankrupt from a dead fishery.

Sarah Palin is to Alaska what Velveeta is to cheese; sadly unsatisfying and empty of nutrition. She had the national stage to plead Alaska's case to citizens who had long forgotten the images of a once pristine Prince William Sound turned into a thick, black, rolling sea; the oiled sea otters and birds; unrecognizable seals and whales; an initially deformed and diseased herring run that became extinct -- costing Cordova $100 million a year. Exxon exploited Alaska and turned pain into profit.

AND NOW, Palin is claiming to be part of a victory for the people of Alaska? Reality Deficit Disorder...now in book form.

The Exxon Shipping Co. v. Baker Supreme Court decision in June 2008 all but pardoned Exxon's negligence. The highest court in the land condoned the half-assed cleanup. (My radio interview on the day of the ruling with Greg Palast). Exxon, the company that set and broke Planet Earth's quarterly profit record three quarters in a row, was let off the hook. Because of this unprecedented landmark decision, future corporate punitive damages are now forever minimally capped at literally pennies on the dollar!

The Roberts Court based its activist ruling on 19th century maritime law. Really! 21st century corporations can now view punitive damages as the small cost of doing business. Due to Exxon's negligence and the corporate sympathy of the Supreme Court, one the largest acts of environmental terrorism in history was treated like an accidental littering. The RATS -- Roberts, Alito, Thomas and Scalia, (Alito recused himself, confident that Souter and Kennedy would fill the business-friendly void) winked at their corporate masters as the Judas Court betrayed Justice.

Exxon doesn't have marked offices in Alaska. There are some pretty hard feelings even 20 years later for some pretty good reasons. When Palin was pointing fingers at Letterman in July of this year, she did it from Houston, Texas. She was there to sign a deal with Exxon on behalf of Alaska. The state's willingness to do business with Exxon was like having your parents rent the basement to the guy who date raped you on prom night. Am I clear?

So Sarah was against the decision before she couldn't remember it before she was for it. And now, courtesy of Going Rogue, Sarah Palin manages to insult and injure Alaskans who will never be made whole with yet another one of her documented lies.

The jury originally punished Exxon with $5 billion in punitive damages -- a year's profit at the time. In 2008, nearly 20 years later, Exxon reported the largest annual profit in US history at $45.22 billion. The company shattered its own record set the previous year. Would the original $5 billion in punitive damages been punishment enough? The answer is now slowly dripping onto victims at 10 cents on the dollar. Opening your mailbox to an Exxon Valdez Oil Spill Settlement check is like getting a royalty payment for the snuff film your kid brother was in. Hey, you're getting paid, but he's still dead and you got to watch.

(above) Then Governor Palin's appropriate reaction to the Exxon v. Baker decision June, 2008

Candidate Palin's stunning memory lapse of Exxon v. Baker just 3 months later...

Look for Going Rogue in the revisionist history section of your local bookstore on Tuesday...

Don Blankenship: Public Officials' Emails Are Private, State Supreme Court Rules

2009-11-13T16:25:25Z

CHARLESTON, W.Va. — The state Supreme Court has ruled that public officials and public employees can keep their personal e-mails private.

The court ruled 4-1 Thursday that none of the 13 e-mails between former Supreme Court Chief Justice Elliott "Spike" Maynard and Massey Energy Chief Executive Don Blankenship are public records. The Associated Press had sued to gain access to the correspondence last year, when Massey had several cases pending before the high court.

Brian Levin, J.D.: Civilian Trials for Terrorists Highlight Differences Between Presidents

2009-11-13T10:06:53Z

President Obama’s surprise announcement from Tokyo earlier
today, followed up by an Attorney General presser, that the most important
terrorism detainee Khalid Shiekh Mohammad, along with four others, will face
trial in civilian criminal courts is a critical departure from Bush
administration strategy to try such individuals before military tribunals.
Mohammad, considered the mastermind of the 9/11 attacks that killed almost 3000
people, was captured in March 2003 in a surprise raid in Rawalpindi, Pakistan.
In addition to 9/11 Mohammad is also believed to have played important roles in
some of the most notorious plots and attacks since the mid 1990s including the
2002 Bali bombings that left 202 dead, the murder of Wall Street Journal
reporter Daniel Pearl, and various airliner plots. In 2007 Mohammad, who had
apparently been previously waterboarded, boasted of his involvement in 9/11 and
various other terrorism incidents during proceedings before a Guantanamo Bay,
Cuba Military Tribunal. Late last year he stated his desire to plead guilty,
but did not officially do so.

The
Legal and Political Conflict Over Detainee Trials

In the period after 9/11, an
internal debate on the status of captured detainees occurred within the Bush
administration with officials from the State Department and career military on
one side and the Vice President and some civilian lawyers on the other.

Foreign captives arrived
at a prison holding facility at a United States military base at Guantanamo
Bay, Cuba starting in January, 2002. By February President Bush classified
these detainees as “unlawful combatants”
as opposed to prisoners of war (POWs). In June 2002 government officials
maintained that the President had the power to hold these captives indefinitely
without judicial review or counsel. Among the main architects of the
administration’s aggressive policy stance was a young Justice Department
attorney and scholar named John Yoo. Yoo’s overall position argued that the
President had expansive authority to prosecute the War on Terror arising from
his constitutional powers due to precedent, wartime exigencies, and the
Authorization for the Use of Military Force, passed shortly after 9/11. These
positions would be rejected later by the Supreme Court.

Yoo’s legal positions emboldened
the administration to pursue an aggressive strategy regarding captured
combatants that was eventually challenged by allies, civilian lawyers, the
Supreme Court, and Congress. Among the more controversial detainee proposals
presented to the administration were the implementation of limited trial rights
and approval of aggressive interrogation methods provided that they did not
cause lasting “psychological harm” or pain “akin to that which accompanies
serious physical injury such as death or organ failure. ” Yoo, joined by Cheney Vice Presidential advisor David
Addington and others, convinced the administration that it had broad authority
over the interrogation, treatment, and trial of detainees. This authority, they
contended did not require the assent of the other coequal branches of
government or the consideration of the requirements of the Geneva Conventions.

Geneva
Conventions

The Geneva Conventions
are a series of treaties that establish rules for the civilized treatment of
civilians and combatants during armed conflicts. Under the Constitution
treaties entered into by the United States have the force of law. In 1949,
various previous Geneva and Hague convention rules were revised and additions
made under the title of the Geneva Conventions of 1949. These post World War II
Geneva Conventions and related protocols define various categories of protected
classes of people and designates how they are to be treated by signatories
during periods of hostilities, irrespective of whether war is officially
declared. The Conventions provide a minimal level of care for all people who
come under the jurisdiction of a party in a conflict. Under Article 3, those
who are no longer participants in a conflict must be cared for humanely.
Criminal cases must be tried fairly before a “regularly constituted court.”

Article
3 also mandates humane treatment as well as specific rights and protections to
those designated as POW. POWs are entitled to adequate housing, clothing, a
reasonable diet, medical care, and the exercise of their religious faith. While
in captivity, POWs need only provide pedigree information such as name, rank,
and identifying serial number and are protected from coercive questioning
techniques. The POW’s government
is to be notified of their status and the POWs may send and receive
correspondence. A humanitarian organization, such as the Red Cross, may have
access to facilities. Discipline that is inhuman, brutal, or dangerous is
prohibited. Torture and cruelty is also proscribed.

While
POWs may be tried, Article 3 details significant requirements on the type of
charges, investigative techniques, and procedural methods for trials.
Generally, Article 3 requires that POWs be afforded similar treatment of the
kind that is extended to military and civilian defendants who are residents of
the detaining power. A baseline
requirement of notice, representation by counsel, translation, access to
witnesses, and appeal is mandated. In addition, charges must relate to offenses
found in civilian or military statutes or violations of the laws of war.

President
Bush Pushes Own Path, Disfavors Geneva

Initially, President Bush
relied in part on pre-Geneva World War II
era ex parte Quirin case
and a similar 1942 Presidential order issued by Franklin Delano Roosevelt. In ex parte Quirin, the Supreme Court
unanimously upheld the right of the President to try enemy belligerents who
violate the rules of war before military tribunals. Rules of war are a code of
conduct that relates to which acts of force are legal during the course of
armed hostilities. The World War II era Court based its decision on the
President’s authority as commander-in-chief and Congress’ prior approval of
such tribunals.

The Department of Defense
published an order on March 21, 2002 detailing the composition and standards
for tribunals. These tribunals include juries composed of three to seven
military officers. Tribunals
adjudicating death penalty cases need
seven jurors and unanimity to render a death penalty verdict. An automatic post trial appeal of death
sentences before military reviewers was required. Non-capital verdicts would
require that two thirds of the jurors to agree on guilt. The traditional guilt
standard of proof beyond a reasonable doubt would be applied to these proceedings.
Defendants would also be entitled to a presumption of innocence, discovery,
protection against self-incrimination, access to paid military legal counsel,
and protections against double jeopardy and self-incrimination. Trials would be
open to the public, with certain exceptions, but could be held outside the
territory of the United States. Rules of evidence would be relaxed in favor of
the government and appeals to civilian courts were prohibited.

Nearly one year later, in February 2003, a draft manual
“Crimes and Elements for Trials by Military Commission” proposed two dozen
chargeable offenses including attacking civilians, hostage taking, hijacking,
and use of poisons, along with the inclusion of other offenses found
traditionally in the Articles of War. The Uniform Code of Military Justice
(UCMJ) was not referenced probably due to its Article 36 requirement that
military tribunals to, as much as is practicable, resemble federal court
hearings. The UCMJ, enacted in 1951 created a uniform set of laws for all the
branches of the American armed forces and a system of official appeals,
including a civilian appellate court.

President Bush sanctioned military tribunals for six
Guantanamo Bay captives in July 2003, including one who technically had dual-American
citizenship. Toward the end of the year, as other detainee cases proceeded
through the civilian federal court system, the Bush administration reversed its
policy of denying detainees’ access to attorneys. The rights of enemy combatants
under detention was the subject of three appeals accepted by the United States
Supreme Court between November 2003 and February 2004. In each case, the President’s Authority
under Article II of the Constitution as commander-in-chief was pitted against
the right of detained persons to have the government account for such
detention.

Supreme
Court Weighs In

The Supreme Court’s opinion
in Hamdi v. Rumsfeld, released on June 28, 2004, did not overturn the precedent
of World War II era caselaw that allowed American citizens who undertake
hostile acts against their country to be held as enemy combatants. Hamdi was
born to foreign parents temporarily in the United States. However, the Court’s
decision held, by an 8-1 vote, that contemporary detainees are entitled to both
notice of the factual basis of their enemy combatant status and an opportunity
to rebut the classification before a neutral decision-maker. The government’s
denial of these rights, particularly within a reasonable period of time,
deprived Mr. Hamdi of his constitutional guarantee of due process pursuant to
the Fifth Amendment. The precise requirements or configuration of such hearings
was not detailed, but the Court’s controlling opinion suggested that military
hearings with lower governmental burdens may suffice. The justices were also
divided as to whether Congressional approval of the AUMF was sufficient to
overcome the requirements of a 1971 law prohibiting the detention of American
citizens in the absence of a specific statute. A narrow plurality of five
Justices maintained that the AUMF resolution extended the government’s
authority to detain Hamdi. Two justices, Scalia and Stevens, maintained that no
such authority existed under the AUMF. Rather they argued the government should
either charge Hamdi with treason or a similar crime, or seek Congressional
suspension of the Writ of Habeas Corpus for his temporary detention. Hamdi was
deported to Saudi Arabia in late 2004 after renouncing his citizenship and
pledging never to reenter the United States.

In two companion cases,
Rasul v. Bush and Odah v. United States, also decided on June 28, 2004 the
Supreme Court ruled 6-3 that non-citizen enemy combatants have a right to
federal judicial review of habeas petitions. Justice Stevens, writing for the
majority, maintained that neither the foreign citizenship of a detainee or the
detention camp’s geographic location on leased Cuba soil prohibited a detainee
from contesting his detention. The cases involved 16 citizens of Britain,
Australia, and Kuwait

On December 30, 2005, the
Detainee Treatment Act (DTA) was
enacted. The DTA implemented revised procedures for the questioning and
treatment of detainees and created procedural safeguards for Americans accused
of improprieties during interrogations. The DTA also mandated various
procedures for tribunals and a requirement of Congressional notification by the
Pentagon regarding procedural practices. The DTA’s language, aimed at denying
detainees access to federal court appeals, did not stop the Supreme Court from
deciding a new case that was winding its way through the courts involving an
alleged driver of Osama bin Laden.

On June 29, 2006, the
United States Supreme Court delivered a major legal setback to the Bush
administration when it conclusively ruled in favor of Hamdan. First, the Court
held that a foreign detainee’s rights were protected by the Geneva Conventions
and were enforceable through the federal courts pursuant to habeas corpus
procedures. Second, the Court ruled that the President lacked the necessary
Constitutional authority or specific Congressional authorization for the
tribunals he created. Without specific Congressional approval, the President
was obligated to follow existing law, including the UCMJ and the laws of war,
which include the Geneva Convention. Restrictive evidentiary rules for the
defense and Hamdan’s compulsory nonappearance on national security grounds from
portions of his trial violated provisions of both these controlling
authorities, thus making his trial unlawful.

Following the Hamdan ruling, comprehensive
changes took place regarding the handling of foreign detainees suspected of terrorist associations. The
administration asserted in July 2006 that all suspected terrorists held by the
military or CIA would be handled in conformance to the requirements of the
Geneva Conventions. In September 2006, the Army published a revised Army Field
Manual that was governed by such standards and prohibited various practices
including lengthy solitary confinements, aggressive use of dogs, and simulated
drowning. On Labor Day weekend
2006, the government transported the 14 remaining foreign detainees in
CIA custody from clandestine overseas sites to the United States military
facility at Guantanamo Bay. Among those presented to the Defense Department for
future trials was Khalid Shiekh Mohammad.
The CIA had engaged in a secret operation known as “rendition” where alleged
dangerous suspects were transferred, interrogated and held incommunicado by the
CIA and foreign governments without regard to the Geneva Conventions.

The
Military Commissions Act of 2006

As a result of the Supreme
Court’s mandate that Congress approve of modifications to the tribunal process
for Guantanamo detainees, intensive negotiations between legislators and the administration
lasted into the fall of 2006. President Bush signed a compromise bill, the
Military Commissions Act (MCA), into law on October 17, 2006. The MCA set rules
and standards for military tribunals and placed restrictions on certain types
of aggressive interrogation. The MCA allows the government to introduce hearsay
evidence and coerced statements at trials of suspected al Qaeda detainees. It
also allows the military to bar detainee defendants from trials when classified
material is used. While the MCA disallows habeas appeals to federal district
courts, it provides for a review of enemy combatant status by a three person
board of military officials. The MCA further permits those designated as
unlawful enemy combatants to be held indefinitely. The MCA states that even
those who merely provide material support to a hostile enemy can be classified
as an unlawful enemy combatant without any requirement of active participation
in armed conflict.

After 9/11 the government prevailed in civilian criminal
courts insome high profile extremist cases like that of the “Lackawanna Six”
(participation in al Qaeda terror training), attempted airline “shoebomber”
Richard Reid, al Qaeda member Zacarias Moussaoui, attempted terror camp
organizer James Ujaama, New York City bridge bomb plotter Iyman Faris, Al Qaeda
supporter Jose Padilla, and lesser figures like Jewish Defense League leader
Irv Rubin, and white supremacist Matt Hale.

Conclusion

As a legal matter President Obama could very well also have
tried these five detainees before military tribunals, as five others are, and
is likely to face a storm of criticism for it.

His critics do have strong points in opposition. Some
crucial evidence likely came about under unusual circumstances, to say the
least, such as through waterboarding, classified informants or foreign sources. There may be a greater likelihood of conviction in a military trial. In addition, holding the trial in New York, blocks from the World Trade
Center, poses important security
concerns, as well as issues for jury selection. Lastly, a civilian trial is
likely to be longer, more complicated, and scrutinized than a more shrouded
military one. Lastly, could a public trial provide opportunities for grandstanding by defendants and their supporters.

The president’s supporters have arguments of their own.
Federal courts have tried and convicted dangerous extremist defendants like
Jose Padilla and Zacarious Moussaoui. Furthermore, at a recent Rand conference
federal judges who have presided over terrorism trials forcefully contended
that civilian courts are fully competent to try such cases—including ones that
involve classified information. Despite his waterboarding, Khalid Shiekh
Mohammad’s demeanor and statements are likely to provide prosecutors with
damning evidence if they can introduce it. While prosecutors have decent, but
not flawless, cases in either civilian or military courts, the President may be
looking beyond the difficulties of the immediate trials. For him the ability to
showcase our justice system in a case involving one of the world’s most reviled
accused terrorists represents an important opportunity to define America before
history and the world. That well may be one weapon we haven’t fully harnessed
against al Qaeda in a parallel battle, not of bullets and bombs, but of ideals.

Supreme Court To Decide If Life In Prison For Juveniles Is "Cruel And Unusual"

2009-11-08T11:50:56Z

WASHINGTON — Joe Sullivan was sent away for life for raping an elderly woman and judged incorrigible though he was only 13 at the time of the attack.

Terrance Graham, implicated in armed robberies when he was 16 and 17, was given a life sentence by a judge who told the teenager he threw his life away.

Supreme Court To Hear Key Software Patent Case

2009-11-08T11:35:29Z

WASHINGTON — With the technology industry looking on, the Supreme Court on Monday will explore what types of inventions should be eligible for a patent in a pivotal case that could undermine such legal protections for software.

A ruling that sides with the Patent Office could bar patents on processes and methods of doing business, such as online shopping techniques, medical diagnostic tests and procedures for executing trades on Wall Street. And it might even undercut patents on software.

Youth Radio -- Youth Media International: U.S. Shouldn't Jail Youth For Life

2009-11-05T20:11:33Z

Originally published on Youthradio.org, the premier source for youth generated news throughout the globe.

By: Reginald Dwayne Betts

Monday the U.S. Supreme Court will hear oral arguments in two cases concerning juvenile incarceration. The ruling could determine if it should be unconstitutional to sentence juveniles to life without parole for non-homicide offenses on the grounds of cruel and unusual punishment. The United States is the only country in the world that sentences juveniles to life in prison without the possibility of parole.

My story is part of an amicus brief asking justices to reverse the harsh sentences, and give young offenders an opportunity to become productive citizens. I was a juvenile offender who spent more than nine years in adult prison, and my offense could have put me in there for life. Since I've gotten out of prison, I performed the college commencement speech at the University of Maryland, I published my memoir A Question Of Freedom, and I entered grad school. I'm making the most of my freedom, but I know others who will never have the same shot at redemption.

I met a guy even younger than me waiting for the bus to go to prison. I'll call him Rashid. His voice still carried the cracks and high notes of adolescence, and his smooth face had never seen a razor. We were headed to Southampton Correctional Center in Virginia.

No fewer than a dozen of us were teenagers, all with peers at home waiting on driver's licenses, graduations and proms - while we waited for a prison cell. Rashid's time was legendary: three life sentences with no chance for parole. It meant he awoke each morning knowing he would one day flatline in a cell.

I looked at him, and I remembered the judge looking down at me, asking if I understood my charges could carry a life sentence. Rashid wasn't old enough to drive, vote, or serve on a jury of his peers - but he was old enough to walk out of a courtroom with a sentence that ends in a casket. After I met Rashid, my nine-year sentence for carjacking seemed like a gift.

Everything I did while incarcerated meant something to me because I could envision a day when I'd be free, and that vision pushed me. There were others who guided me: Jose who helped me teach myself Spanish, Mike G who pushed me to study law. They, too, could see a life not defined by bars and cuffs - but for too many people the violence of prison stifled dreams. Over six months I watched Rashid experience things that would leave anyone lost in depression: theft, beatings, the cloud of rape. A life sentence makes that permanent.

There is an absolute loss of hope for juveniles sentenced to life in prison. A life sentence without parole makes it far too easy to become a part of the violent world of prison, as predator or prey.

I can't imagine what I would have done had the judge sentenced me to life. I can't imagine walking around daily knowing a grave was my only way out. Because I had a release date, I recognized that the time was a way for me to improve myself. Seventeen hours each day to read, study and exercise - to think and become a man far different than the sixteen-old boy who plead guilty to carjacking.

As teenagers, our lives are impulse and reaction. I'm not the same person I was at 16. No one is. The difference between a person at 16 years old and 25 or 30 years old is huge. Juvenile offenders, who are years away from the maturity and sensibility of a 25 or 30 year old, need to know that society believes there is a possibility that they can be more than their crimes. They need to know that society believes rehabilitation is real.

All any incarcerated juvenile wants to believe is that their life can be more than a series of cell doors.

Also From Youth Radio:

From High School To High Security

Legally Enforced Corruption

Sotomayor and the Politics of Affirmative Action

Youth Radio/Youth Media International (YMI) is youth-driven converged media production company that delivers the best youth news, culture and undiscovered talent to a cross section of audiences. To read more youth news from around the globe and explore high quality audio and video features, visit Youthradio.org
Read more: Christopher Frank Pittman, Supreme Court, US Supreme Court, Reginald Dwayne Betts, Youthradio, Joe Sullivan, Roper v. Simmons, Sullivan v. Florida, Youth Incarceration, U.S. Supreme Court, Juvenile Justice, Youth Imprisonment, Prison, Youth Radio, Jail, Car Jacking, Cruel and Unusual Punishment, Politics News

Diane Tucker: Terrorist Or Activist? A Young Colombian, Gabriel Gonzalez, Fights For His Country, His Reputation (VIDEO)

2009-11-05T14:07:45Z
Last week in Manhattan, veteran journalist Tom Brokaw presented the 2009 Human Rights Award to Gabriel Gonzalez, a young activist who opposes the inhumane treatment of Colombian prisoners. The thoughtful young man then flew home to Colombia, where he is charged with being a terrorist and faces seven years in prison.

Call it one heck of an identity crisis for Gonzalez, or better yet, call it "same old, same old" in Colombia, where the difference between "hero" and "rebel guerrilla" can be a matter of opinion, and all too often a matter of life and death. Last year, 11 human rights workers were murdered in Colombia. So far this year, at least nine have been killed, despite increased government protection.

I spoke with Gonzalez just hours before he returned to Colombia to face the music.

What is the nature of your relationship with Colombia's leftist guerrillas?

Gabriel Gonzalez: I don't have any relationship whatsoever with the FARC or any other illegal group in Colombia. In my human rights work, I help prisoners promote their right to due process and legal representation -- legitimate and important work. However, some of these prisoners have been detained because they were suspected of being FARC members.

Is that why you were prosecuted?

No, the government accused me of being the commander of a FARC rebel militia force in Pamplona, the town I grew up in. I spent 15 months in jail -- in detention -- before the judge declared I was innocent because the court found no evidence of the FARC in Pamplona. Obviously it was impossible for me to be the leader of a group that didn't exist.

Then why were you sentenced to seven years in prison?

The Inspector General appealed the judge's decision, which was strange because the Inspector's job is to uphold the rights of defendants. Another court convicted me in absentia to seven years in prison, without a new trial or any new evidence. Human Rights First is helping me appeal this decision to the Supreme Court of Justice in Colombia. We still don't know if they'll take the case.

Do you believe you were set up?

Not long before the legal proceedings against me, I learned that paramilitaries were planning to assassinate me. It came as a terrible shock. Despite their death threats I continued my work, which included exposing human rights violations committed by public officials. I received a lot of attention from the national media. One might assume that since death threats didn't silence me, the baseless criminal charges were an attempt to silence me.

Do you expect you'll be treated fairly by the Supreme Court?

The Supreme Court in Colombia is a strong institution with very good jurisprudence. I certainly hope the court maintains its independence and doesn't succumb to political interests, because this is an emblematic case. Coached witnesses, biased prosecutors -- the same old patterns appear over and over again in human rights cases. It's time for the government to take concrete steps to address this problem, not in a case-by-case manner, but in a way that reforms institutions.

Does President Uribe deserve a third term?

His policy of Democratic Security has resulted in extrajudicial executions, forced displacement on trumped-up charges, and other serious human rights violations. A third term for Alvaro Uribe would continue along the same line.

But human rights violations have been occurring for decades in Colombia.

That's true. The solution depends less on one man, and more on a coherent state policy. For this we need the assistance of the international community.

So you think President Obama should do more to condemn human rights violations?

Plan Colombia isn't working. The U.S. is spending millions of dollars fighting drug trafficking in Colombia, without commensurate results. President Obama should focus on human rights, because ultimately it's the best way to combat problems like drug trafficking. Poor rural farmers must be allowed to cultivate their own land, sell their own products, and earn a livable wage. Instead, the farmers' political leaders are prosecuted on trumped-up charges. No wonder rural farmers grow coca or join the FARC, simply to earn money for food.

I thought the FARC were withering away.

They've suffered enormous blows. But we aren't sure whether they've become extremely weak, or are trying to regroup. What's certain is that Uribe said he would get rid of the FARC in four years. It's been eight years and the FARC is still here, which means less attention has been paid to education, jobs, and health care. Most of the international community thinks the main problem in Colombia is the war between the government and extremist groups, but that's not the case. The war is a consequence of the underlying problem.

Do you mean drugs, or poverty?

Lack of opportunity, lack of jobs, a dysfunctional health care system, a weak educational system -- together these problems generate social unrest. The government needs to sit down with civil society and listen to our proposals for a peace process, our ideas to improve Colombia's economic structure. As long as the government refuses to have an open dialogue with its people, it will never find viable solutions.

Should a U.S. free trade agreement with Colombia have human rights' strings attached?

A free trade agreement would give enormous benefits to Colombia. This would be the best time, and the best way, to achieve systematic reform of human rights.

You're returning to Colombia in a few hours. Do you fear for your life?

Sadly, everyone who works to promote human rights in Colombia fears for their life.

Then why do it?

Someone has to. I can't close my eyes and pretend nothing is happening. It's an ethical imperative for me, and for Colombia as a nation.

Your parents must be very worried.

When I was detained in jail for 15 months, it was a terrible time for them. But they're proud that I'm putting into action the principles they taught me as a child.

Gabriel Gonzalez at the Supreme Court Building in Washington, D.C. (Oct. 2009)
Photo: Andrew Hudson

Read more: Supreme Court, Venezuela, Colombia FARC, Human Rights First, Foreign Affairs, Terrorism, Democratic Security, Human Rights Campaign, Human Rights Abuses, Diane Tucker, Foreign Policy, Colombia Free Trade Agreement, Human Rights Violations, Hillary Clinton Colombia, Human Rights, Tom Brokaw, Colombia, Colombia Free Trade, Alvaro Uribe, Gabriel Gonzales, Farc, Mexico's Drug War, Alvaro Uribe Government, Video, World News

Maia Szalavitz: Really Special Education : State Investigation Confirms "Lap Dance Therapy" Allegations

2009-11-04T12:21:01Z
Are lap dances an effective therapy for attention-deficit hyperactivity disorder or drug addiction? It doesn't seem like a question that should require a serious answer -- but a state investigation of Oregon's Mount Bachelor Academy (MBA) has substantiated allegations made by students and staff that such "therapy" was part of the school's "emotional growth" curriculum and forced an emergency shutdown of the campus.

Just this June, the Supreme Court had decided in favor of a couple who sued for payment of MBA's tuition to treat their son's ADHD and marijuana problem. The Court determined [pdf] that parents of disabled children do have the right to seek such taxpayer support from a school district, even if they haven't tried public special education first.

While the decision didn't specify whether MBA itself was appropriate, some districts across the country are already reimbursing parents for its current $76,000 annual tuition, despite decades of allegations of similarly inappropriate and unproven practices. (Just one example is here [pdf].)

These abusive practices aren't isolated. MBA is part of the largest chain of "troubled teen" programs in the industry, Aspen Education, serving hundreds of kids. Right now, another Aspen program in Oregon -- best known for being featured in the reality TV series "Brat Camp" -- is under criminal investigation.

That investigation is related to the August death of a 16-year-old boy, which the sheriff's deputy in charge of the case has called a "homicide." As in several earlier deaths in such programs, the boy was made to hike in intense heat and is thought to have died of heat stroke after staff ignored his complaints. The state made Aspen shutter the program, known as Sagewalk, in September. Websites with urls like bratcamps.com still advertise it.

But look what's going on, even when these programs don't kill kids. On Monday, Oregon's Department of Human Services released a scathing report on Mount Bachelor, saying that its "emotional growth" curriculum is "harmful and damaging" and its "methods of emotional, behavioral and mental health intervention and daily interaction with students perpetuate an environment that poses a pervasive immediate threat which places all children at risk of harm."

The state ordered the school to shut down immediately and demanded numerous disciplinary, educational and staffing changes within 90 days or its license would be revoked.

The report confirmed eight allegations of abuse involving five students, but said that those students were actually "exemplars" whose experience is "substantially consistent with the experience of all children enrolled in the program." It specifically held Executive Director Sharon Bitz to account, saying that she "either knew of the abusive practices of the agency or should have known what was happening under her authority."

Incredibly, despite that $6,400 monthly tuition and advertising claims that MBA is appropriate for teens with conditions ranging from depression, ADHD and addiction to bipolar disorder and obsessive-compulsive disorder, the investigation found that "MBA has only one staff member who is an Oregon licensed mental health professional, however, that staff member reported that he does not meet with every student."

Not surprisingly, Bitz attacked the report in a statement released to the press by Aspen's parent company CRC Health. She said, "We vigorously disagree with the state's findings. This surprising action, following seven months of cooperative work by Mount Bachelor with the state since the allegations surfaced, is not only erroneous but also creates an unnecessary burden of distress and disruption for our students and their families. As a result, we are quickly and aggressively pursuing legal options."

The investigators interviewed 65 witnesses over the course of the seven month investigation, including students, staff and the ex-employee whistleblower who first made public the allegations. They determined that MBA violated at least eleven Oregon licensing rules and was "punitive, humiliating, degrading and traumatizing."

According to their report, the school's Lifesteps seminars and other tactics involved "sexualized role play in front of staff and students," and required "students to reenact past physical abuse in front of staff and peers." Allegations of sleep deprivation were also substantiated.

Students who spoke with me for a Time Magazine online story in April -- which helped spur the investigation -- were stunned by the announcement. "I'm so happy now I can't even explain," said Jane* (a pseudonym).

Before being sent to MBA, Jane had been raped. At one of the Lifesteps seminars, the 18-year-old was forced to dress as a "French maid" and perform lap dances while Kelis' sexually suggestive song "Milkshake" and similar music was played. "I was freaked out and traumatized and I couldn't do anything about it," she says.

Her friend Adam -- who asked that only his first name be used -- said he witnessed at least four girls and one boy who had identified himself as bisexual being made to do this "exercise." He said that when the girls performed the lap dance on him, "They were just crying." The bisexual boy had to give lap dances to both males and females.

Amber Ozier, now 24, attended MBA in 2002 and 2003. At the school, she was made to repeatedly re-enact her 10-year-old sister's accidental drowning death, which occurred at Amber's 12th birthday party.

"I feel like bricks have been lifted off me, like other kids won't have to go through the things I went though," Ozier says, "I'm glad they can't hurt any more kids or mentally torture them. That's what I feel like they were doing and I'm glad I'm not being called a liar anymore because the things I said were true."

Melissa Maisa attended MBA from 1992-1994. When I spoke to her for Time, she described having been made to do a bizarre and obscene ritual, for which she had to lie on the floor "in the sluttiest way possible" in front of male staff members and students. Through numerous repetitions, she had to put one foot on a guy's knee and say, "This foot is Christmas." Then, she'd place the other foot, saying "This foot is New Year's. Would you like to meet me between the holidays?"

Maisa said she encouraged the state investigator who interviewed her to get into the positions that she had been made to take. "It's one thing to hear the stories, but another thing entirely to put yourself in that position mentally and physically, to think about being a teenage girl far from friends and family, feeling like no one loves you and then you have to act out no one loving you."

Maisa, who had organized other former students online and urged them to share their stories with investigators added, "Everyone has their jaw on the floor right now. As a group, we're so used to being the bad kids that we can't believe that anyone finally took us seriously."

But the state indeed substantiated allegations that teens were denied necessary access to bathrooms and found that they were sometimes punished by being sent to camp alone on an island in "inclement weather," or by "strenuous" work projects. Alternatively, some were not permitted to "talk, touch or look at others and face the wall during meal time" for a week or longer.

Communication with parents was censored and restricted -- and those who tried to report abuse were immediately punished or cut off from further communication. Teens were also denied legally required access to education during punishments.

During the course of the investigation, the school was aware that the Lifesteps program was under particular scrutiny. Nonetheless, according to the report after the state rejected a proposed revised program called "Transitions" because it "too closely mirrored the prohibited Lifesteps program. MBA proceeded to offer the Transitions program knowing that such choice could result in further investigation."

Failure to report a rape disclosed by a student to child welfare authorities and police as required by law and regulatory violations involving mismanagement or denial of access to medications were also found.

Given the massive number of expensive changes -- such as hiring qualified staff -- that the state requires in 90 days, it may be difficult for MBA to comply successfully in time to retain its license.

Could this be the beginning of the end for the billion dollar troubled teen industry? It's already facing severe economic challenges because of the credit crisis -- parents had paid to send their kids by mortgaging their houses to pay the over-inflated tuition.

Lawsuits could well follow the MBA shutdown and the Sagewalk death -- and school systems are likely to start looking more closely at what they are getting for the hundreds of millions spent nationally to send disabled students to these often-unregulated and rarely scrutinized facilities.

"I feel great, I'm shocked," says Susan Dowren, the whistle-blower, who kept pushing investigators to look more closely. She adds, "There were more employees who wanted to speak out but felt that they couldn't jeopardize their jobs and income. I really think others wanted to, but you can't let that stand in your way, I just wanted everybody to tell the truth."

Whether that truth leads to larger and lasting changes and prompts more humane and effective treatment of teens is now up to you.
Read more: Supreme Court, Taxes, Expensive Lap Dances, Education, Add, Disabilities, Teens, Addiction, Treatment, Mount Bachelor Academy, Drugs, Troubled Teens, Living News

John Terzano: Prosecutors Must be Held Accountable for Misconduct

2009-11-04T09:12:43Z
Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.

Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct.

No matter the outcome of this particular case, it is yet another example of why it is so important for states to enact reforms to ensure that prosecutors who abuse their powers are held accountable for their actions. The Justice Project's policy review, Improving Prosecutorial Accountability outlines suggested reforms such as the establishment of prosecutorial review boards to sanction prosecutors who abuse their power within the criminal justice system. Without the threat of meaningful professional discipline, prosecutors cannot be held accountable for their actions and are likely to continue to abuse their power to secure convictions, which threatens our public safety and the integrity of our criminal justice system.

Implementation of disciplinary measures that create a culture of accountability will result in a more fair and accurate justice system. Such measures will also encourage prosecutors to better fulfill their multiple and critical roles of convicting the guilty, protecting the innocent and guarding the rights of the accused. Until prosecutors face the real threat of discipline, such as fines, suspension, or even disbarment, it is likely that the egregious acts of prosecutorial misconduct that threaten our criminal justice system will only continue.

John F. Terzano is President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system.
Read more: Supreme Court, Wrongful Conviction, The Justice Project, Prosecutorial-Accountability, Prosecutorial Misconduct, Politics News

Rep. John Conyers: A Patriot's PATRIOT Act

2009-11-03T18:41:33Z
My Judiciary colleagues Jerrold Nadler, and Robert C. Scott joined me in penning this piece.

In 1928, the Supreme Court heard its first challenge to a secret government wiretap. The court upheld the warrantless surveillance in that case, but Justice Brandeis dissented.   While the wiretap evidence was important to a federal prosecution, he warned that "experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent." Brandeis' view was vindicated forty years later, when the Supreme Court overruled that decision and held that government wiretaps require warrants and probable cause.

The House Judiciary Committee will take up legislation tomorrow to revise a number of provisions of the USA PATRIOT Act, and we would all do well to heed Justice Brandeis. Everyone agrees on the critical importance of fighting terrorism and crime. And no one should question the motives of the law enforcement, intelligence, and military services who are on the front lines of this struggle. But good intentions are not enough to preserve our liberty, and the current PATRIOT Act simply grants too much unchecked authority to our government. In our view, it should be tightened up to ensure our government gets the information it needs, and keeps out of the information it doesn't.

For example, under current law, the government can get a secret intelligence court order requiring any person or business in the United States to turn over any information considered "relevant" to a foreign terrorism investigation. The information does not have to involve a foreign agent or terrorism suspect, it simply has to be useful to investigators. If a terrorism suspect visited a bar or restaurant -- or a bookstore -- the government might consider the credit card records of every other person who visited the establishment that night to be "relevant." The government's showing need not meet any meaningful evidentiary threshold - a mere statement of facts giving rise to the government's belief that the information is relevant is enough.

Even more troubling are PATRIOT Act provisions allowing the government to obtain information on US citizens without any court review whatsoever by issuing so-called "National Security Letters." These "NSLs" allow the FBI to compel banks, phone companies, internet service providers and others to produce customer records, while forbidding the businesses from telling anyone that their records have been searched. Once again, under current law, the government may exercise this power if it believes records are relevant to an investigation, even when the records do not directly relate to any terrorist or foreign agent.

As legislators sworn to defend the Constitution of the United States, we are obliged to craft a law that preserves both our national security and our national values. The old Franklin saw that those who would trade liberty for security deserve neither may be clichéd, but that is because it is true.

That is why we have introduced a new PATRIOT Act bill that ensures our government has the power it needs to fight terrorism and defend our nation, and at the same time better protects the constitutional rights and freedoms that Americans cherish. Our bill would tighten the standards for NSLs and for secret court orders compromising the records of US citizens, and includes a range of other protections to ensure these powers are available where needed, but cannot be abused. It would also require enhanced oversight and reporting to Congress, so that any misuse of these powers can be uncovered and fixed.

When he spoke before our founding documents at the National Archives last May, President Obama echoed Justice Brandies:   "As a citizen, I know that we must never, ever, turn our back on [the Constitution's] enduring principles for expedience sake." He was exactly right, and we urge the President and all members of Congress to take that principle to heart as we work together to craft a revised PATRIOT Act of which all patriots can be proud.
Read more: Patriot Act, John Conyers, Bobby Scott, Jerry Nadler, Supreme Court, Privacy, Politics News

States May Sue Banks For Fraud Over Mortgage Crisis

2009-11-03T10:29:19Z
Frustrated by the banks' inability or unwillingness to stop an avalanche of foreclosures, the states are considering lawsuits over the creation and marketing of millions of bad loans as well as the dismal pace of mortgage modifications.

Such cases would have been impossible until recently, because federal regulators had exclusive oversight of national banks. But a 5-to-4 Supreme Court decision in June allowed the states to exercise their own supervision, giving them significant leverage.
Read more: Supreme Court, Fraud, Mortgages, Freddie Mac, Mortgage Fraud, Banks, Fannie Mae, Foreclosure, Terry Goddard, Eliot Spitzer, Housing Crisis, Business News

Supreme Court To Hear Case About Excessive Pay; Parallels Seen In Executive Compensation

2009-10-31T22:11:03Z
The Supreme Court this week will hear a case that raises bedrock questions about the ability of the market to set "reasonable" corporate compensation, and experts say its outcome could hold important clues about the judiciary's view of extraordinary interventions in the economy by the executive branch and Congress.
Read more: John C. Bogle, Regulation, Reform, Obama, Investors, Mutual Funds, White House, Bailout, Sotomayor, Jones vs. Harris, Jones vs. Harris Associates, Wall Street, Excessive Pay, Vanguard Group, Kenneth Feinberg, Financial Reform, Compensation, Pay Czar, Nfl, Index Funds, Barack Obama, Corporations, Sonia Sotomayor, Supreme Court, Jones v. Harris Associates, Bonuses, Ken Feinberg, Apeals Court, Executive Pay, Business News

Scalia Misquoted On Brown v. Board Of Education (CORRECTED)

2009-10-27T13:14:00Z
CORRECTION: An item posted here -- reporting that Supreme Court Justice Antonin Scalia said that if he were on the court in 1954, he would have dissented in the landmark Brown vs. Board of Education decision that ended school segregation based on race -- was incorrect.

The original report, in Phoenix's East Valley Tribune has been changed.

Yale Law School Professor and blogger Jack Balkin writes: "Here is the video of the event:

"At 23:45 Justice Scalia.... says that he stands with Justice Harlan, who dissented in Plessy v. Ferguson. He argues that the original meaning of the Fourteenth Amendment prohibits racial discrimination."

Watch Scalia comment:
Here is our original, incorrect report:

* * * * *

In an appearance at the University of Arizona College of Law, Supreme Court Justice Antonin Scalia said that if he were on the court in 1954, he would have dissented in the landmark Brown vs. Board of Education decision that ended school segregation based on race.

Appearing on stage with Justice Stephen Breyer, Scalia cautioned against "inventing new rights nobody ever thought existed." Scalia said he advocates an "originalist" approach to the Constitution, warning against an "evolutionary" legal philosophy that he described as, "close your eyes and decide what you think is a good idea.''

Phoenix's East Valley Tribune reported (via Taegan Goddard's Political Wire):

Using his "originalist'' philosophy, Scalia said he likely would have dissented from the historic 1954 Brown v. Board of Education decision that declared school segregation illegal and struck down the system of "separate but equal'' public schools. He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better.

"I will stipulate that it will,'' Scalia said. But he said that doesn't make it right. "Kings can do some stuff, some good stuff, that a democratic society could never do,'' he continued.

"Hitler developed a wonderful automobile,'' Scalia said. "What does that prove?''

"The only thing you can be sure of is the Constitution will mean whatever the American people want it to mean today,'' Scalia said. "And that's not what a Constitution is for. The whole purpose of a constitution is to constrain the desires of the current society.''

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Read more: Supreme Court, Activist Judges, Justice Scalia, Brown v. Board of Education, Constitution, Antonin Scalia, Politics News

Clarence Thomas To Other Supreme Court Justices: Be Quiet

2009-10-24T00:52:51Z
TUSCALOOSA, Ala. — Clarence Thomas, the justice long known as the silent member of the Supreme Court, criticized his colleagues Friday for badgering attorneys rather than letting them speak during oral arguments.

Thomas – who hasn't asked a lawyer a question during arguments in nearly four years – said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments.
Read more: Supreme Court, Supreme Court Justices, Clarence Thomas Supreme Court, Clarence Thomas, U.S. Supreme Court, Politics News

Jeff Schweitzer: Death from Cluelessness: State Killing Machines and the Penalty of Indifference

2009-10-21T14:34:34Z

Nobody has ever shown that a lifetime in jail without parole is any less a deterrent to future crime compared with the threat of death. As a general rule, violent crime rates in countries with no death penalty are lower than in the United States.

In supporting the death penalty, the United States is a standout in an unsavory crowd. We associate with the likes of Sudan and Qatar rather than with Sweden and Switzerland. Only the United States, China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen have executed minors since 1990. We join this lethal group willingly, with more than 60% of Americans favoring state-sponsored death. That broad support is in part a consequence of America’s religiosity and an affinity for the wrathful God of Abraham demanding and eye for an eye. A majority of Americans believe we have a biblical mandate to kill criminals, by numbers the same majority that believes America is a Christian nation.

The death record differs considerably among the various states, with a strong correlation to religious fervor. Texas, Virginia, Missouri, Oklahoma, and Florida have carried out 75% of all executions, with Texas executing more than the other four combined. The next five are Georgia, South Carolina, Louisiana, Alabama and Arkansas. As are Texas and Oklahoma, all states in the second group are in the top 10 most religious (measured by polls asking respondents if religion “is an important part of your daily life”). That means that 7 of the 10 most religious states are also the country’s most prolifigate executioners. These are the same states with the highest number of citizens claiming to be “pro life.” Of the top 10 least religious states, Massachusetts, Maine, Rhode Island, Vermont, and Alaska have abolished the death penalty. Religious states kill more prisoners than the least religious.

The death penalty is supported in the United States not on the basis of facts but on assumptions, all of which are unproven. We hear statements like “capital punishment deters murder and helps protect police” without one shred of evidence to support that conclusion. That statement was from Charley Wilkison, a spokesman for the Combined Law Enforcement Associations of Texas. Strange how the same people who happily put people to death on untested assumptions with no supporting evidence are the same who demand a much higher level of proof on issues like climate change or environmental protection. One would think killing another human, and fear of doing so wrongly, would be the issue requiring the highest level of conclusive evidence that the practice accrues some benefit to society. Yet no data support the claim of deterrence. The murder rate in Texas is 5.9 per 100,000. The murder rate in Maine is 1.7 per 100,000. Maine abolished the death penalty way back in 1887.

Let us take a closer look at Texas as the clear leader of the bunch, so enamored with both the death penalty and church. In 2000, the state executed a record 40 prisoners. That means the state killed on average a prisoner every 9 days, creating the equivalent of a state-sponsored death factory. Texas has put 441 inmates to death since capital punishment was reinstated by the U.S. Supreme Court in 1976. The stench of dead flesh has risen to such noxious levels that former Texas Governor Mark White has called for the state to “reconsider” the death penalty. White concludes that the practice “no longer” deters murder, without offering any evidence it ever did or suggesting what might have changed from when he was involved with 20 executions as governor and state attorney general.

By White’s account, a murderer in the good old days would stop his knife in mid-arc fearful of being put to death if caught. But today murders have somehow grown immune to threats of death by injection. But the former governor’s odd conclusion about deterrence is only the appetizer to a more bizarre meal. His cluelessness is worth exploring because his ideas are broadly representative of society’s views, hypocrisies, inconsistencies and willful blindness to the truth on this issue. Read with awe the following statements from White (I have added the emphases): “There is a very strong case to be made for…a look at the possibility of having life without parole so we don’t look up one day and determine that we, as the State of Texas, have executed someone who in fact was innocent.”   He went on to say that the system is so unreliable that “it creates the unnecessary possibility that an innocent person would be convicted in Texas. And I don’t think anybody in Texas wants that to happen.”

One day, as in the future? Really? The surrealistic implication in that statement is that Texas has not yet executed an innocent prisoner. Perhaps he has forgotten David Spence, executed in 1997. Even the principle homicide investigator in the case believed Spence to be innocent. A growing number of people now believe that Cameron Todd Willingham was wrongly convicted of arson and murder. He was executed in 2004. Current Texas Governor Rick Perry has procedurally blocked a state commission from examining the investigation and conviction. Ruben Cantu was executed in 1993 for killing a man during a robbery. The problem is that later independent investigations concluded that Cantu “was likely telling the truth” when proclaiming his innocence. The key eye witness who identified Cantu recanted. Since Willingham, Spence and Cantu are all now dead courtesy of the state, their exoneration does little good.

Former Gov. White blithely ignores the obvious fact that wrongful convictions are by no means rare in our system. Advances in DNA testing have proved conclusively that in the last 10 years at least 180 prisoners in the United States, innocent of the crime for which they have been convicted, have been sentenced to death. Michael Blair was sent to death row for the 1993 kidnapping and killing of Ashley Estell, only to be later proven innocent by DNA. Dennis Williams and Verneal Jimerson spent 18 years on death row in Illinois for a crime they did not commit. Kirk Bloodsworth wasted nine years on death row as a child killer while the murderer roamed free. These are the "lucky" ones who were eventually freed before execution. And White worries that “one day” Texas will execute an innocent man! What colossal indifference to reality.

We know for a fact that innocent people have been put on death row, and that innocent people have been executed. That is an undeniable truth. Whether one opposes or supports the death penalty, that innocent people have been killed by the state cannot be refuted.

The penalty of death is too permanent to account for inevitable errors or willful misconduct on the part of police, judges, or prosecutors. Our justice system is rife with false eyewitness identification, fraudulent testimony, sloppy forensics and corrupt evidence gathering. The danger of executing an innocent person is far greater than the societal benefit derived from putting a guilty prisoner to death, particularly when reasonable alternatives exist such as life in prison with no possibility of parole, so recently discovered by former Gov. White.

The rationale for imprisoning a convicted criminal is threefold: to protect society from future harm, to deter other would-be criminals, and to punish the offender. Given these societal objectives, no circumstances warrant use of the death penalty because none of the three legitimate purposes of incarceration is clearly advanced by state-sanctioned death.

The fact of wrongful conviction should alone be enough to abolish the death penalty. Lack of any convincing evidence that society benefits from the practice provides additional weight to opponents. The primary claim of proponents that the death penalty deters criminals has never been substantiated; much evidence hints at the opposite conclusion. Statistics by state comparing crime rates and executions offer no solace to those in favor of the ultimate penalty.

Carl Sagan famously said that extraordinary claims require extraordinary evidence. The claim that killing prisoners acts as a deterrent or keeps police safe is indeed extraordinary; but the claim is not supported by anything close to extraordinary evidence.

Here is what we know. Innocent people have been executed; and the death penalty has no proven benefit to society.

We have sacrificed our morality for so little. The death penalty diminishes us. Just as we now look back on slavery with shame, so too will future generations judge us harshly. Our children will wonder how we could possibly condone such barbarism. Are we really no better than the medieval societies lingering today on the fringes of human history? The time has come for the United States to leave behind a primitive practice more appropriate to the 16^th century than the 21^st; We have no business being in the same death business as China and Chad.

Read more: Wrongful Conviction, Supreme Court, Rick Perry, Death Penalty, Cameron Todd Willingham, Texas-Executions, Death Row, Execution, Crime Rates, Lethal Injection, Dna Evidence, Death Row Acquittals, David Spence, Ruben Cantu, Politics News

Supreme Court To Hear Uighurs' Case

2009-10-21T09:10:11Z
The Supreme Court set aside the objections of the Obama administration and said Tuesday that it will consider whether judges have the power to release Guantanamo Bay detainees into the United States if they have been deemed not to be "enemy combatants."
Read more: Guantanamo Bay, Guantanamo, Supreme Court, Obama Guantanamo, Supreme Court Uighurs, Uighurs Supreme Court, Uighurs, World News

Andy Worthington: Justice at Last? Guantanamo Uighurs Ask Supreme Court for Release Into U.S.

2009-10-20T19:30:41Z
One year and two weeks ago, District Court Judge Ricardo Urbina ordered that 17 Uighur prisoners at Guantánamo be released into the United States. Muslims from China's Xinjiang province, the Uighurs were seized and sold to U.S. forces by Pakistani villagers in December 2001, after they had fled a settlement in the Afghan mountains, where they had ended up after fleeing Chinese oppression.

One of the men had secured a resounding court victory last June, when appeals court judges ruled that the government had failed to prove that he was an "enemy combatant," involved in any way with either al-Qaeda or the Taliban, and in the wake of this ruling the government abandoned all pretense that any of other 16 men were "enemy combatants" either.

Last October, reviewing the habeas corpus petitions of these 17 men, Judge Urbina ordered their release into the United States for three compelling reasons: firstly, because they could not be returned to China, where there were fears that they would be subjected to ill treatment, torture or worse; secondly, because no other country had been found that would accept them, despite the State Department scouring the globe; and thirdly, because it was unconstitutional for the United States to be holding innocent men at Guantánamo.

After years of indifference -- or worse -- on the part of the US authorities, who knew that these men were innocent almost from the moment that they were seized, this was a proud moment for U.S. justice, and appeared to provide the remedy that the Supreme Court intended for prisoners at Guantánamo who were found to be innocent by a court, when the nation's most important judges granted them constitutionally guaranteed habeas corpus rights in June 2008, in Boumediene v. Bush.

However, the Bush administration disagreed, appealing the ruling and persuading a notoriously Conservative bench of the Court of Appeals to rule that, on questions regarding the immigration of aliens into the United States (even those who had been wrongly detained in an experimental prison camp for over six years), the decision was in the hands of the Executive, and not the courts.

In what I regard as one of the weakest moments of the Obama presidency regarding Guantánamo, the Justice Department maintained the same line as the Bush administration in February this year, when the Court of Appeals reconvened en banc (with a full panel of judges) to make a final ruling, in which they officially reversed Judge Urbina's principled decision to order the men's release into the United States.

Had the government backed down, the four Uighurs who took up residence in Bermuda in June -- where they soon demonstrated to any open-minded local that they were not, and had never been terrorists -- would have performed the same remarkable task on the streets of Washington, D.C. instead, and even Americans seduced by the Bush administration's unsubstantiated rhetoric about the "terrorists" of Guantánamo would have been able to discover, first hand, that the Bush administration made mistakes at Guantánamo, and that innocent men were held.

Instead, lawmakers of both parties -- spurred on by the dark rumblings of former Vice President Dick Cheney, who ghoulishly reappeared, encouraged by the mainstream media, who behaved as though he was still in power -- reinforced the Court of Appeals' ruling, passing legislation preventing the release of any Guantánamo prisoner (however innocent) onto the U.S. mainland.

Betrayed by the Executive branch, Congress and the Court of Appeals, the Uighurs' lawyers were obliged to appeal to the Supreme Court, which they did in April, asking that the justices address the following question (PDF):

Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush, has no power to order the release of prisoners held by the Executive for seven years, where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.

In the meantime, the government found a new home in Bermuda for four of the men, and began the negotiations that, to date, appear to have secured the agreement of six of the remaining 13 men that they will be resettled on the remote Pacific island of Palau.

In June, the Supreme Court deferred a decision on the Uighurs -- perhaps to allow the government time to find new homes for the men -- but on Tuesday the justices unexpectedly agreed to hear the case, Kiyemba v. Obama, which, of course, touches on the very territory that they last visited in June 2008.

Oral argument in the case is not expected until next year, and in the meantime the government may find new homes for the remaining 13 Uighurs, rendering the case moot, but in briefs the battle lines have been drawn.

On the one hand is the government, endorsing Bush-era policies, and stating, via Solicitor General Elena Kagan, that the Uighurs' remedy has been granted by a court, and that they are "free to go to any country that is willing to accept them," but that "there is a fundamental difference between ordering the release of a detained alien to permit him to return home or to another country, and ordering that the alien be brought to and released in the United States without regard to immigration laws."

And for the Uighurs, there is Sabin Willett, a Boston-based attorney, and his team, who argue that the Court of Appeals' ruling made a mockery of the habeas rights extended to the prisoners by the Supreme Court, and transformed Judge Urbina's ruling into nothing more than an empty gesture. Willett explained that it made courts "powerless to relieve unlawful imprisonment, even when the executive brought the prisoners to our threshold, imprisons them there without legal justification, and -- as seven years have so poignantly proved -- there is nowhere else to go."

In a statement issued via the Center for Constitutional Rights, he added, "We now have asked the Supreme Court to hear the Uighur cases, and rule that the writ of habeas corpus guarantees to the innocent not just a judge's learned essay, but something meaningful -- their release."

As the eighth anniversary of the men's wrongful capture approaches, they surely deserve nothing less.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison, and maintains a blog here.
Read more: Supreme Court, World, War on Terror, Terrorism, Judge Ricardo Urbina, President Obama, Guantanamo Detainees, Guantanamo, Justice Department, US District Court, Boumediene v. Bush, Barack Obama, Uighurs, World News, Dick Cheney, Habeas Corpus, Politics News, Guantanamo Uighurs, Bermuda, Uighurs Bermuda, U.S. Court of Appeals, Habeas Corpus Guantanamo, Guantanamo Bay, Sabin Willett, Advocacy, Politics News

Admiral: I Can Empty Guantánamo Camps In 10 Days

2009-10-20T18:00:26Z
GUANTANAMO BAY NAVY BASE, Cuba -- The military can comply with a White House order to empty the detention center and clear all 221 war-on-terror captives off this remote base "with 10 days notice,'' the prison camps commander said Tuesday.
Read more: Guantanamo Bay, Tom Copeman, Closing Guantanamo, Prison Camp, Gitmo Closing, Close Gitmo, Gitmo, Detainees, Commander, White House, Enemy Combatants, Deadline, Supreme Court, Cuba, Politics News

Guantanamo Uighurs' Rights To Be Considered By Supreme Court

2009-10-20T10:25:31Z
WASHINGTON — The Supreme Court agreed Tuesday to decide whether Guantanamo detainees who are considered no threat can be ordered released in the United States – over the objections of the Obama administration and Congress – if the prisoners have nowhere else to go.

The case could further complicate the administration's plans to close the Guantanamo prison where 220 or so men are still held.
Read more: Guantanamo Detainee Release, Supreme Court Guantanamo Detainee, Guantanamo Detainee Rights, Guantanamo Prisoners, Supreme Court Guantanamo, Guantanamo Detainee, Supreme Court, Guantanamo Bay, Guantanamo Human Rights, Closing Guantanamo, Politics News

Ralph Anspach: Economist Spent Decades Fighting Monopoly Game's Corporate Owner

2009-10-20T00:25:34Z
Ralph Anspach, an 83-year-old economics professor, spent decades locked in a real-life battle with Monopoly and its corporate owners. The campaign dented his finances, sent him on a nationwide trek for intelligence and sparked a legal case that reached the steps of the Supreme Court.
Read more: Monopoly History, Economics, UC Berkeley, Monopoly, Origins, History of Monopoly, Ralph Anspach, Great Depression, Monopoly Game, Landlord's Game, Monopoly Board Game, Hasbro, Supreme Court, Elizabeth Magie, Economist, Professor Anspach, Parker Brothers, Home News

Referendum 71: US Supreme Court Judge Blocks Release Of Names In Gay Rights Ballot Fight

2009-10-19T15:59:07Z
WASHINGTON — Supreme Court Justice Anthony Kennedy has temporarily blocked Washington state officials from releasing the names of people who signed a ballot measure on gay rights.

Kennedy's ruling Monday temporarily blocks a federal appeals court ruling last week that ordered the release of the names. Kennedy said his order would remain in effect while he considers a request by a group, Protect Marriage Washington, to reverse the appeals court ruling.
Read more: Equality, US Supreme Court, Ref 71, Benefits, Gay, Benjamin Settle, Public, Same-Sex, Washington State, Names, Gay Rights, Vote, Secret, Supreme Court, Referendum 71, Olympia, Open-Government, Justice Kennedy, Anthony Kennedy, Petition, Gay Marriage, Domestic Partnership, Politics News