September 2003

« August 2003 | Main | October 2003 »

Mean, Maximum John Is At It Again

Filed under: Imported

Last week Attorney General John Ashcroft ordered his 94 head prosecutors to pursue maximum criminal charges and sentences whenever possible and to seek lesser penalties through plea bargains only in limited circumstances. Charge to the max and make no deals.

Has Ashcroft lost his mind?  More than 96% of all federal criminal cases end up plea bargained. Were that not so, the courts would be nonfunctional.  What is Ashcroft thinking, aside from wanting total control over every thought and movement of his prosecutors?  Perhaps he wants to pitch for more mean and rigid federal judges.

Federal judges are already bound by strict sentencing guidelines, and can depart from them only in very clearly defined circumstances.  A law enacted earlier this year requires U.S. Attorneys to report to Ashcroft the names of all judges who do not sentence to the max. But Ashcroft lacks the support of Chief Justice Williams Rehnquist and Justice Stephen Bryer, who have denounced the strict mandatory minimum sentences that tie a sentencing judge's hands.

What is Ashcroft's excuse for this ridiculous requirement? He says it is to insure uniformity among all federal trials.  Problem is, there is no such thing as uniformity of trials. Every defendant, every case, every judge and jury is different from the other. There is no prototypical murder or espionage.  Nor is there a "typical" defendant such that all must be sentenced "equally" for the same crime.

But the biggest problem I have with Ashcroft's demand is this:  Assuming, arguendo, that "uniformity" of sentences is a worthy goal (I don't buy it, personally) where is it written that the uniformity must fall on the harshest side of the law?  How about a nice golden mean for sentences?  Where is the compassionate conservatism in throwing the book at every defendant?  And so much for "no child left behind."  Harsher sentencing policies lead to more prison time, and every parent in prison has a child left behind by our criminal justice policies.

A state prosecutor in Massachusetts is personally appealing to Ashcroft to not pursue the death penalty in the case of two Massachusetts men accused of a gang murder.  After Ashcroft authorized a federal death penalty prosecution against two Massachusetts men accused of a gang murder, the local Suffolk County District Attorney, Daniel F. Conley, objected to using capital punishment to end urban violence, stating,

I do not believe the death penalty is a deterrent or appropriate punishment for inner-city homicide. The death penalty runs counter to the strategies for preventing and prosecuting urban crime -- which include sensitivity to the neighborhoods we serve -- that have proven successful in Boston over the last decade." Conley plans to personally appeal to Attorney General Ashcroft to drop the death penalty prosecution against the defendants. Carrie Gethers, the victim's grandmother, has also announced that she does not support the federal government's decision to seek the death penalty. She stated, "It won't do anybody any good. . . I don't see any use for that anymore. I'm not a murderer. Not me. I won't say yes to that. He's gone. It hurts, but this won't bring him back." (Boston Globe, September 19, 2003).

Conley better watch his back.  Maximum John does not like little boys who aren't as mean as he is.  Though Ashcroft has little control over Conley because he is a state prosecutor, Conley may end up on one of several lists Ashcroft is keeping.

Ashcroft began his term with an assault on defense attorneys through his prosecution of attorney Lynne Stewart.  Now the front of his war against the Constitution and the courts is being fought with judges, prosecutors, and defendants. Let's see--whose left?  Jurors!  Ashcroft and his buddies on the hill may already have a plan to make acquitting jurors sorry.

With every arrogant, idiotic pronouncement, Ashcroft is undermining the judicial system and the rule of law. I have him on my list of administration officials who ought to be sent packing.

 

 

 

Posted by Elaine Cassel at September 29, 2003 5:19 AM

 

 

Filed under: Imported

 

Posted by Elaine Cassel at September 27, 2003 10:28 PM

 

The Moussaoui Train Is Leaving the Station. Next Stop--Gitmo or the Brig?

Filed under: Imported

Prosecutors in the Eastern District of Virginia have asked Judge Leonie Brinkema to dismiss all charges against Zacarias Moussaoui, the so-called 20th September 11 hijacker. The unusual move comes with their impatience with her for not making a decision as to how she should sanction them for disobeying her orders.

She told the prosecutors that they must produce three government witnesses for Moussaoui and his attorneys to question. She believed that these witnesses might have information that would exonerate Moussaoui in some measure, or at least provide fertile material for his defense.

Moussaoui's lawyers also asked for a dismissal. This puts Judge Brinkema in the position of virtually having to dismiss the case. What will happen when she does?  The government will appeal the dismissal to the 4th Circuit Court of Appeals in Richmond, which may very well overturn Judge Brinkema's orders to produce witnesses. Recall that earlier this year the Court said that the government was premature in appealing her order. The court said, defy her, then get back to us.

This is the same Court of Appeals that handed the government a huge win in the case of Yasir Hamdi, the American who has been detained for over a year without being charged with a crime under the rubric of being an "enemy combatant," U.S. District Judge Robert Doumar refused to buy the government's argument that President Bush can name any citizen an enemy combatant and lock him or her up incommunicado forever. Forever! Doumar was outraged, as we all should be. The 4th Circuit panel was unmoved. Who were they to question the almighty George W., they mused?  Their ruling was more political polemic than reasoned law.

That the Moussaoui case should end this way is no good for any one. Surely, immediately upon dismissal the government will spirit Moussaoui away from his jail cell in Alexandria to a military brig somewhere--or perhaps to Guantanamo Bay, Cuba.  Once there, he will be forever out of the jurisdiction of any federal court, according to a precedential opinion handed down earlier this year by the U.S. Court of Appeals for the District of Columbia.

If the 4th Circuit agrees with the government and says Moussaoui does not get to question witnesses, the decision may be moot. The government is not likely to ever bring Moussaoui back to federal court.  The next we hear about Moussaoui may be news of his summary trial and execution. And the truth about what Moussaoui did or did not do will never see the light of day.

Ashcroft may have gambled and lost in Alexandria. He drew the wrong judge. Almost any other judge on the bench there would have given the government whatever it wanted. But if Judge Brinkema does dismiss the case, it will be a pyrric victory for the justice system, the Bill of Rights, and those who support the rule of law. As long as the courts stand by and let the government seize, detain, try, and execute people under ad hoc rules, none of us is safe, none of us is free.

 

Posted by Elaine Cassel at September 26, 2003 5:58 AM

 

Yes, Virginia, There Are Terrorists! But Uncle John Will Watch Out For You

Filed under: Imported

---

Virginia, Your little friends are wrong. They have been affected by the free-thinking minds of a dangerous age. They do not believe what we tell them, even if it means causing another tragedy on our home soil. They think that what is protected in their little Bill of Rights should stay to protected, even when we are threatened. Clearly, their minds are little, and their patriotism is even littler--They love their 214 year-old document more than they love God Bless America bumper stickers, and shame on them. I'm not supposed to tell you, dear Virginia, but I've seen what you've checked out at your library, and let me put things in perspective for you. In this great universe of ours, mere documents such as the Constitution are flawed. Think of this, dear Virginia, We have changed this silly piece of parchment twenty-seven times. If your papa was in a burning building, and so were these historical documents you checked out of the library--Who would you save? Of course, you would save your papa, because you love him. Well, on September 11th, our building burned, and Virginia, please, if you are capable of grasping the whole of truth and knowledge, please, save your papa, because you love him. Save your country. No Virginia, there are no freedoms for bad people. Freedom for the evil exists in the same world as sedition and represented taxation, in a world that ignores the deaths of Americans on September 11th in favor of a stuffy old document written by stuffy old people with powdered wigs, Virginia. Alas! How truly dreary would be the world if terrorists were given rights. Virginia, do you want to go on a plane to Disneyland? Virginia, You can go on that plane. But bad people, people who hate you, cannot. Tell me Virginia, does this sound wrong? Only good people should go to Disneyland. Tell me Virginia, would you kill good people because you hate this country? No, you would not, because you are a good little girl; and behind that list of dangerous library books is a good girl--a girl who played Betsy Ross last year in kindergarten, and whose mother sewed her costume with supplies she bought from Walgreen's on August 12th, 2002 using her VISA Card. You have nothing to hide, dear Virginia, and only bad people, who buy bad things with their VISA card should be forced to stay home while good people go to Disneyland. We'll follow you too, to watch, and make sure you have a good time on the rides. Yes, we will watch you at Disneyland as surely as we watch you in the library, or at your piano lesson. Because we watch, you are safe from bad people. We should have no enjoyment in freedoms, when bad people are out there, trying to hurt you. Give bad people liberty! You might as well give them bombs. The external darkness with which evil plagues the world will soon be extinguished. You might find a bad person that ends up not committing a crime, but what does this prove? It proves that we are doing our job, and that you are safe. We make no distinction from those who are bad, to those who protect the freedoms of the bad--both are bad people. Be a good person, Virginia, and you can share in the American Disneyland that is free of bad people, and you will be free from liberty, justice, bombs, and due process--the tools of the bad. Have you ever seen a terrorist dancing on your lawn, or down the aisle of your plane? Of course not, but that's not proof that they do not exist. Nobody can conceive all the evils that evil foreigners can think up. You can give these people freedoms, that they do not deserve, and wait for something bad to happen; Or, you can let us decide. Virginia, your father barely maintained a 2.0 in High School. He only played baseball for one semester, after which he was cut because of poor athletic ability. Do you want your papa, whom you dearly love (enough to buy a Fathers day card last June 16th with your allowance money, 5 dollars a week, withdrawn from your mother's Wells Fargo account three days prior at the Second Street ATM) to decide who is bad and who is not? Your papa is a simple man, and you love him, but he can not see evil which lurks deep beneath a person's Jesus-given soul. I can, and I will make sure that this evil does not have the liberty to corrupt you or your feeble-minded father. Freedoms for bad, evil, scum of the orient? Thank our Lord GOD in heaven, and our infallible Pope that they are not free, and never will be. One year from now, Nay, Five times one year from now, they will continue to rot in an undisclosed location, kept far from the liberty of the good. Merry CHRISTmas!

With Vigilant Love, like a Bengal Tiger,


Attorney General John Ashcroft


=======================
   John Ashcroft
   202-353-1555
   U.S. Department of Justice
   950 Pennsylvania Avenue, NW
   Washington, DC 20530-0001
      Code: ORANGE

Posted by Elaine Cassel at September 25, 2003 5:54 AM

 

And Now, The Translators!

Filed under: Imported

What will the Pentagon do next?  Round up the cooks? As reported here on Monday, the chaplain who ministered to the 660 prisoners held by the U.S. government in Guantanamo Bay, Cuba is being detained at a military brig in South Carolina. No charges have yet been filed against him, but you can bet some will be forthcoming.

Yesterday, the government announced that an Arabic translator assigned to the prison camp has been charged with treason and espionage, crimes  that carry the death penalty. 

We may never know what these men are alleged to have done, let alone what they actually did. For the military can tightly control the information about court martial proceedings.

We can only hope that what goes on with these young military men will not mirror what our government is doing to thousands of Muslim men out of uniform--rounding them up, holding them without charging them, denying them attorneys, accusing them of some minor violation of the law or immigration procedeures that may have taken place years ago, and deporting them. In addition, charges are brought against members of so-called "terrorist" cells, most of which are no more than Muslim men who work and play together and may have talked about religion or politics or urged support of some legitimate religious cause.

As in the case of the "Alexandria 11," 4 men have pled guilty to talking about going to fight for Muslims in the struggle between India and Pakistan for the Kasmir. For this, they are being sentenced to 10 or more years in prison because India is a friend of the U.S. Do you know who "our" friends are?  I would be hard-pressed on any given day to say who was a friend or enemy of the U.S., especially on a day when Bush or Powell go begging to the United Nations for the support they spurned months ago.

When I asked one of the Alexandria 11's former attorneys, Ashraf Nubani, why these men plead guilty, he said:  "You are held for weeks, maybe months, as a material witness in some nebulous investigation; you are denied access to a lawyer or your family; the government charges you with being a terrorist; it promises that you will spend your life in prison if you don't plead to a lesser charge; if you plead, you will be out in 10 years. Now you have a lawyer who tells you to take the deal, don't risk your life. What do you think they will do?  What would you do?" 

Many of these men, alleged to be "terrorists," did nothing more than lie on a visa application, overstay their visas, or possess a firearm. All were guilty of the ultimate crime--being a Muslim.  And for this, they will spend years behind bars. 

If the chaplain and the translator are truly traitors who threaten the safety of American citizens, they should be afforded a fair and public trial and punished appropriately. But if they are being prosecuted because they are befriending and counseling the prisoners of Guantanamo, Americans ought to rise up in anger and demand that our government stop persecuting Muslim and Arab men, whether in or out of uniform, whether citizen or alien, prisoner or "free."

 

 

 

Posted by Elaine Cassel at September 24, 2003 5:48 AM

 

Apologies to Military Lawyers

Filed under: Imported

An active duty military attorney chastised me for my opening comment in yesterday's post. He pointed out that military defenders in court martials are, like their public defender counterparts, generally competent and vigorous protectors of their clients rights. He likewise indicated that the defenders are not punished for their success against their superiors, as I thought they might be.

I should have made a distinction between courts martial and the military tribunals planned for Guantanamo prisoners. The former are governed by longstanding military laws and regulations, while the later are the subject of ad hoc regulations enacted on the fly by the Pentagon in its prosecution of "the war on terror."

I am grateful to the reader for taking the time to set me straight.  And even more grateful that he reads this blog.

Posted by Elaine Cassel at September 23, 2003 5:23 AM

 

First They Come For The Lawyers, Then The Ministers

Filed under: Imported

I always thought that the idea of a military man facing a court martial and having a military defense attorney was some kind of sick joke. The joke got sicker a few months ago when,with much pride, the government announced it was going to provide the men held in Guantanamo Bay, Cuba for almost two years with the best justice the military could muster.

More than 600 men and teenagers were rounded up in Afghanistan and have been housed in cages in Cuba. They have been denied access to attorneys and have had few contacts with their families. Earlier this year Paul Wolfowitz was appointed Chief Judge and Lord High Executioner of the military "tribunals" that would try some of these hapless souls. We have heard nothing else about those trials, perhaps because the Pentagon has egg on its face with the mess it has made of Iraq. Not the cakewalk they planned--or did not plan.

We were told that the defenders in the Guantanamo military tribunals would be military lawyers who would work under an officer who himself bemoaned the fact that he did not get the prosecutor's job. If they could afford it, Gitmo prisoners could hire American defense attorneys. But those attorneys would have to swear fealty to the Pentagon and understand that all contact with their clients would be monitored. And they would have a life-time gag order on ever talking about anything that they saw, did, or thought while involved in the tribunals. What competent, ethical lawyer would do that? Especially with the specter of being charged themselves, as was the fate of attorney Lynne Stewart.

Now, we are told that the chaplain that has been provided for the Muslim prisoners, Army Capt. Yousef Yee, has been spied on by the military for months. Yee has not yet been charged, but he has been moved to a military brig in South Carolina, a distinction he shares with "enemy combatants" Yasir Hamdi and Jose Padilla. Yee is alleged to have had in his possession "classified" documents about the detainees and Camp X-ray. Supposedly, his job was to teach fellow troops about Islam and counsel detainees. Sources say he may have counseled them not to "cooperate" with their interrogators.

But what does "counsel" mean?  Attorney Lynne Stewart was charged with conspiring to commit acts of terror arising out of the relationship with her client, Abdel Rahmen.  Rahmen was convicted of charges arising out of the 1993 World Trade Center bombings. Judge John Koeltl, federal judge in New York City, dismissed the terrorism charges against Stewart (two other charges remain), saying that she was doing what lawyers do--lawyers act as counselors, defenders, confidents, and, sometimes, friends.

A minister does similarly--though not in the context of the courts. A minister's role is far more personal. But, like the confidential communications between lawyer and client that are protected by legal privilege against disclosure (that is, before Ashcroft got ahold of it and ripped it to shreds), confidential communications between an individual and a priest, minister, or cleric are likewise the subject of ancient legal protection. Though sometimes referred to as the "priest-penitent" privilege, it generally applies to all communications made in confidence to someone acting in a ministerial role in a church or other religious context. But this protection does not apply in the military, apparently. Or certainly not in Guantanamo. Or, at least, when the prisoners--and cleric--are Muslim.

Keep your eye on this case. It could be yet another front in the war on civil liberties.  Today, a chaplain in Guantanamo. Tomorrow, your minister, cleric, priest, or rabbi. 

 

 

Posted by Elaine Cassel at September 22, 2003 5:44 AM

 

Does He or Doesn't He (Snoop)? Ashcroft and Your Library Records

Filed under: Imported

John Ashcroft's rant about our concern with his powers under the Patriot Act led to his statement that the Department of Justice and FBI had not used its powers under Section 215 of the Patriot Act to snoop into our library records. Section 215 does not specifically mention libraries or bookstores. But it permits the FBI to obtain secret warrants in foreign terrorism or intelligence investigations for "books, records, papers, documents and other items" from all types of businesses or other organizations. Such warrants must be approved by the Foreign Intelligence Surveillance Court, which oversees investigations of individuals or groups in the United States believed to be foreign terrorists or spies. The individual, such as a librarian or clerk, who receives the subpoena is barred from disclosing that fact to the patron or customer.

Is Ashcroft telling the truth that this power has never been used? Is he outright lying? Or is he engaging in disingenuous deception? 

No more than two weeks ago, Ashcroft was defending his right not to give our data on how many requests for library and other records had been issued.  Said it was a matter of national security--the data.  But something happened to change his mind--or at least to appear to change his mind.

His Traveling Patriot Salvation Show, which only admitted law enforcement officers and select television media (no print media or ordinary Americans could enter) was not a success.  It drew criticism to Ashcroft and the Patriot Act like a lightening rod.  Angered at the failure of his ploy, he said, essentially, "O.k., if you really must know, we have not asked for anyone's library records."

Do you, Americans, believe him? Why should you?  Why the secrecy about not using it, only to release the information when his back was up against the wall of resistance? Ashcroft could not resist taking a stab at all of us who question him--we are "ridiculous hysterics." We?  Who have been trying to find out how the government is snooping on us when he led us to believe that it was?

But Georgetown University Law Professor David Cole has it figured out.  Even if the government never uses the law, he says, it has a substantial chilling effect. Americans don't want their reading habits used by hysterical law enforcement to make them look like a "terrorist," whatever that means. 

The irony of Ashcroft's statement was not lost on Representative John Conyers, Jrs., ranking Democrat on the Judiciary Committee. If the F.B.I. has never actually used its power to demand records from libraries, bookstores and other institutions in pursuit of terrorists, why does it need the authority at all? Said Conyers, "Given the potential for abuse of library and bookstore records, I can see no reason why — if this authority was not needed to investigate Sept. 11 — it should stay on the books any longer."  One measure already pending in the House would exempt libraries and bookstores from having to turn over records under Section 215 of the legislation.

In the meantime, only Ashcroft and FBI Director know the truth about the government's snooping under Section 215. I wouldn't believe either one of them. How about you?

 

Posted by Elaine Cassel at September 20, 2003 6:42 AM

 

Paybacks Are Hell! Bush v. Gore and the California Recall

Filed under: Imported

I recall listening to now Solicitor General Theodore Olson making his pro-Bush argument before the Supreme Court in December 2000.  He was not doing particularly well and his side-kick, Chief Justice William Rehnquist, stepped in and proposed a promising argument.

Might it not be a violation of the 14th Amendment's equal protection clause to have different ways of recounting votes in differing jurisdictions?  Brilliant idea, Olson must have thought, as he pedaled furiously to pretend as if he had thought up the argument himself. He need not have, as Rehnquist carried on for him, even suggesting case precedents.

That equal protection argument threw the experts--especially since the equal protection clause--which forbids states from interfering with federal rights--would not seem to apply to elections. For you see, there is no constitutional or federal right to vote!  If you did not know that before Bush v. Gore, I hope you learned then that the right to vote for state office is governed by state law. Further, your right to elect electors to vote in the electoral college, which elects the president of the United States, is likewise governed by state law (though the manner of the meeting of the electors and casting the vote for President and Vice President is governed by the Constitution). Said the court,

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, §1.

The 9th Circuit Court of Appeals, in ruling on a suit by the American Civil Liberties Union and other organizations, applied the full force of the equal protection agument to the upcoming effort of some Californians to recall Gov. Gray Davis. Several counties (the poorest and those with large minority populations) don't have the new fancy voting machines. They have, instead, punch cards, complete with hanging chads, those diabolical voting remnants that gummed up the Florida count.

The 9th Circuit said that those votes would be more likely than those votes rendered by means of the new machines to be tabulated incorrectly or not counted at all.  Under Bush v. Gore, the court said, such a voting scheme is antithetical to the 14th Amendment.

No sooner had the opinion been announced than Republicans in California and across the country accused the 9th Circuit of perpetrating a left-wing conspiracy against the would-be new California governor, Arnold Schwarzenegger (or, to be fair, I guess, against all Republicans).  Someone else accused former President Bill Clinton of influencing the judicial opinion. That's because Clinton was in California rallying support for Davis the day before the ruling was announced. Ah, a perfect correlation. 

It is likely that the full panel of the 9th Circuit will rehear the case. There is no telling what it will do. If it votes along political lines, it will toss the three-judge court ruling.  In any event, this case will make its way to the Supreme Court.

There, the justices can leave it alone or delve in. Either way, they are hung by their own petard, quite literally. I say this with enormous glee. For the decision, according to election law and constitutional law experts, was totally without legal precedent and defied all logic.

Will they follow their own rationale of Bush v. Gore? That is, "When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

Or will they hide behind the excuse they created for themselves? They demurred, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

If they do take the case and rule for the Republicans, they will appear to be the political animals that they are.

And if the high court rules for the plaintiffs and, in an act of legal and logical consistency, stops the recall?  A novel thought, but not an event I expect to be writing about.

 

 

Posted by Elaine Cassel at September 17, 2003 8:21 PM

 

Troublesome Bill of Rights "Ties Hands" of Law Enforcement

Filed under: Imported

Last week, President Bush jumped on the Patriot Act revision bandwagon. Speaking at the FBI Academy in Quantico, Virginia, Bush said that "we" needed new laws that would make it easier for police to compel evidence from us against our will and use it against us to prosecute and imprison us.

According to The Washington Post, Rep. Tom Feeney, Republican from Baby Bush's empire in Florida, has already introduced the legislation on Bush's (and, doubtless, Ashcroft's) wish list. 

The legislation would allow an end run around the 4th and 5th Amendments to the Constitution of the U.S. The 4th Amendment prohibits unreasonable searches and seizures; the 5th Amendment protects us against testifying against ourselves.

The 4th Amendment would be amended by allowing more "administrative" subpoenas of evidence and witnesses, by the FBI, DOJ, and whomever else "investigates" national security or terror-related crimes.  It is so much trouble, you know, to have to get a magistrate or a grand jury to issue subpoenas.  Better that FBI field agents can order librarians (as they do, now) directly to turn over your check-out records and order the librarian not to tell you about it--on pain of being charged with a crime themselves. The new law would expand the situations in which FBI field agents and Department of Justice prosecutors could make such demands on doctors, merchants, other keepers of business records.

Even more troubling is the proposal that you and I could be compelled to talk with federal investigators. Currently, we can be compelled to testify before a grand jury upon a properly issued subpoena, but that's a far cry from submitting ourselves to law enforcement interrogation or else being jailed for refusal to do so.

Under Mr. Feeney's bill, you could no longer refuse to talk to investigators and there would be no grand jury protections if the Justice Department merely alleged that  "a danger to national security" exists. Further, the person who talks to investigators could be the subject of a permanent gag order, against ever talking--to anyone--about what was discussed with the feds. This is entirely at odds with traditional grand jury procedure, in which witnesses are specifically exempted from the secrecy that surrounds proceedings.  

According the the Post, the Department of Justice tried to distance itself from Feeney's bill, until sharp eyes noted that the provisions were a part of the much-maligned Patriot II proposed legislation that was leaked earlier this year.  There, too, Justice denied that it was anything more than a wish list, and was not intended to be a serious proposal.

That lie has led to the perception that the draconian proposals of that law were of the table. They are not--nor will they be. They will be tucked here and there into larger bills, even spending measures, and quietly taken up with little fanfare.  And you can bet that every Democrat running for the presidential nomination will sign onto it, for fear of being labeled against "national security" and "pro-terrorism."

Those of you who have been deluded into thinking that there is a presumption of innocence in this country, take note. For practical purposes, I have long believed that it does not exist in the courtroom. Under the proposed legislation, it will no longer exist in the law either.

Posted by Elaine Cassel at September 15, 2003 5:55 AM

 

Alexandria Prosecutors Defy Judge Brinkema Yet Again

Filed under: Imported

Once again, federal prosecutors in Alexandria, Virginia have told Judge Leonie Brinkema that they just cannot obey her order that they produce two additional witnesses for questioning by Zacarias Moussaoui and his defense team. 

After hearing proffers of what these witnesses might say to help Moussaoui, Brinkema said that they could be material exculpatory witnesses. They may, she suggested, dispute the government's claim of Moussaoui's involvement in September 11 attacks or provide evidence in mitigation of the death penalty that the government says it will seek.

Brinkema had not yet announced what her action would be in response to the government's refusal to violate her prior order to produce another witness. The government appealed her order to the 4th Circuit Court of Appeals in Richmond. That court told the prosecutors that their appeal was premature--they needed to outright violate the order, wait for Brinkema to "punish" them, and then appeal the punishment.

Brinkema could do anything from limiting government evidence, to taking the death penalty off the table, to outright dismissing the case.

Sources close to the case suggest that the government is being recalcitrant not because it fears the witnesses actually threaten national security, its claimed excuse, but because a weak case would be made weaker still by Moussaoui offering these witnesses' testimony in his defense. If that is the case, the government ought to be punished for more than disobeying Brinkema's orders. It ought to prosecuted for conspiring to violate Moussaoui's due process rights under the U.S. Constitution. 

Sources also say that the government is resigned to having the case dismissed, after which they will ask Bush to name Moussaoui an "enemy combatant," so Ashcroft can order him removed to Guantanamo Bay or some other location.

Once out of the jurisdiction of a federal court, the government contends that it can do anything at all with Moussaoui, constrained neither by U.S. or international law. Under current rules drafted jointly by the Defense Department and the Justice Department, the government can try him in a military tribunal or hold him forever without a trial. He can and will be denied access to an attorney until the government decides to try him.  Then he can have the benefit of a military officer giving him the best defense Paul Wolfowitz (who is in charge of the tribunals) will allow. If convicted, he can be summarily executed.

The government criticizes Brinkema for not letting them do it their way. They hate like hell, they say, to have to take him out of her court. But Brinkema has insisted all along that she conducts her court according to the U.S. Code, the Federal Rules of Criminal Procedure, and, to the government's great dismay, the U.S. Constitution.

Posted by Elaine Cassel at September 13, 2003 12:28 AM

 

Yes, By God, Give Us More Police Power. And Less Liberty.

Filed under: Imported

After hearing President Bush's speech on Sunday night, I wondered how long it would be before the next grenade against liberty was launched. Had to be, you know.

The war on terror has a new front--Iraq. You know what that means? All the provisions of the Patriot Act and executive orders that Bush and Ashcroft put into place during the "war" in Afghanistan come into play. Meaning, for instance, that any one can be snatched out of Iraq and interned in cages in Guantanamo Bay, Cuba, or wherever else Rumsfeld and Wolfowitz decide to house "enemy combatants." It means that Shiite Muslims or any other faction of Iraqi citizens or immigrants in this country may be considered "terror" suspects and themselves "detained" for questioning.

It means that charities that send aid to Iraq may be at risk for being charged as aiding and abetting terrorism unless the charity is the U.S. Government. Presumably, it--and its deputy Haliburton and subsidiaries--are the only entities allowed to fund Iraq "rebuilding."  (And you and I are the contributors to that charitable organization with our tax dollars).

It comes as no surprise then, that on Wednesday the Washington Post reported that Bush made a visit to the FBI Academy in Quantico, Virginia and proclaimed that police needed the same power to fight "terror" as they have to fight "crime." There are terrorist acts (like reading, perhaps?)-- that are not yet crimes, he said; there are  terrorist crimes that do not yet--heaven forbid--carry the death penalty.There are investigations for which police still--gasp!--must obtain search warrants.

That simply won't do, the Prez said. So look for new bills to come out of the Congress making heretofore legal acts crimes, making some existing crimes crimes of terror, and giving the police more power to further trample on the Bill of Rights.

All because Bush botched the "war" against Iraq and had to rename it the war on "terror." And because, as was his  mantra Sunday night, somebody has to pay for this war, and it ain't gonna be him, unless we, the voters, make him pay with his job.  It is you and I who will pay. With the lives of our sons and daughters, with our tax dollars, and with our liberty.

 

Posted by Elaine Cassel at September 11, 2003 4:48 AM

 

McCain-Feingold In Trouble

Filed under: Imported

After listening to yesterday's arguments in McConnell v. Federal Election Commission before the Supreme Court, it is obvious that the campaign finance reform law known as McCain-Feingold appears is headed for serious curtailment, if not the legislative graveyard.

Though some commentators have suggested that the law will stand or fall in a 5-4 split, a 6-3 decision to deep-six the law is more likely.  Justices Ginsburg, Stevens, and Souter may vote for the legislation, the rest against it.  Swing-vote Sandy (Sandra Day O'Connor) did not appear vested enough in the debate to even be sitting on the fence.

The hearings, for me, were another opportunity to renew my disgust with Justice Antonin Scalia. He hogged the debate, going off on rants of his own at any opportunity. My, how that arrogant man loves to hear himself talk. He berated the plaintiffs' attorneys and the Congress at every turn, though he handled Solicitor General Ted Olson with the characteristic kid gloves.  Congress ought to be furious at the barbs he threw its way. Scalia cannot make an argument that can hold its own--he must pepper it with ad hominem attacks, the kind of thing that lawyers in private practice are urged not to do.  Justice Rehnquist had plenty of snide comments himself, directed mainly at Congress. 

Scalia and Rehnquist showed their contempt for prior rulings that paved the way for McCain-Feingold, something not lost on Sens. McCain and Feingold as they spoke to reporters afterwards.  McCain noted that Congress crafted the legislation with prior cases as their guide. But it was apparent that the court would likely reverse itself, as it has done so often in the past 20 years. This court blows with the political winds, and the justices will do what suits their personal ideologies.  A majority won't let details like precedence and deference to the legislative branch of government stand in its way.  Indeed, time after time, Rehnquist and Scalia showed their contempt for the body that wrote the law.

The Bush Administration only signed onto the law as a public relations ploy--this the court knows. Bush set out, as he is doing now, to exploit every loophole in the law to amass his large campaign chest of corporate interests to whom he will continue to be beholden.  It was laughable to hear Solicitors General Olson and Clement argue for the law, though it was apparent that Clement had his heart in it and believed in the law.

Olson, whose role in Bush v. Gore returned as bad memories do (I recalled how, when arguing for the Bush team, he was helped by Rehnquist who made his best arguments for him), ate up much of his time sparring and laughing with buddy Scalia. His argument, if one can call it that, consisted of strings of redundant phrases, lacking in passion, conviction, and trenchant legal reasoning.

The best lawyer of the day was former Solicitor General Seth Waxman, arguing for Senators McCain and Feingold.  He was brilliant, impassioned, and, much to my delight, ended one of his rounds instructing Scalia to let him answer his question. That was one of the few times that Scalia did not get away with asking a rhetorical question and then waxing idiotic on it with insults and sarcasm.

I recommend listening to the arguments, if for no other reason but to hear good and not-so-good lawyering and not-so-good "justicing." I dare you to find one justice that inspires you with a sense of commitment to the much needed reforms the law seeks to address.

Scalia criticized Congress for writing a law that is in its "self-interest," meaning that it regulates their own campaigns. Following that logic, the law is in the justices' self-interest as well.  We rarely get to hear Supreme Court arguments--Bush v. Gore, the University of Michigan affirmative action cases are recent exceptions. When we do, we are reminded, sadly, of how intensely political the Supreme Court it.

And we revisit Bush v. Gore once again. But that is another column.

Posted by Elaine Cassel at September 9, 2003 6:42 AM

 

The PATRIOT Act: What's It Doing? We Don't Know

Filed under: Imported

The USA Patriot Act, the most wide-ranging revision of criminal law and procedure in history, became law with little debate or press attention on October 25, 2001.  Now that Congress has awakened from its deep sleep and the public is starting to realize that there is such a law, the press also is getting on the bandwagon and taking a critical look.

The Washington Post has, until recently, been particularly lacking in in-depth critical commentary. Certainly, there have been articles written about the law, but not the kind of depth analylsis that has been seen in The New York Times, or smaller newspapers across the country.

But. today, the Post gets credit for publishing an extensive story that looks at the Patriot Act and how it is being used. The good news is that it wrote the story. The bad news is that there is damn little to write about. Because, for all that the Patriot Act does, one thing it does not do is allow disclosure of how it is being used.

Congress, of course, failed to make provisions for that in the law, and it has gone begging to Ashcroft since for him to please, please, please tell them how many library, medical, and business records of Americans have been searched, to mention but one tiny aspect of the law.

And Ashcroft, being the stubborn, authoritarian autocrat that he is, thumbs his nose at Congress and says, like his buddy Dick Cheney, come and make me. And of course, Congress cannot make Ashcroft do anything.  But some members of Congress, including a Republican here and there, are doing what it does best--voting to spend or not spend money. And the first sign that renewals and revisions of the Patriot Act were in trouble was when the House voted overwhelmingly to deny future funding to the "sneak and peek" provision of the law that allows a tiny little look at your bank records, for instance, before asking for a subpoena. The Senate will take up the matter in the next few weeks.

It's time for you to learn more about the Patriot Act, if you are still wondering what it is. Begin by reading my article, The Other War, and then visit the ACLU website.  If you want to read what little Ashcroft has to say about the glorious victories the law has wrought, check out his site, paid for with our tax dollars. 

You will be amazed at how much good he has been able to do with a law that tramples all over the Bill of Rights. All in the name of life and liberty, you know.

 

 

Posted by Elaine Cassel at September 8, 2003 6:21 AM

 

The Forgotten Prisoners of Guantanamo Bay

Filed under: Imported

It has been a while since the hapless prisoners of the United States, those being held in Guantanamo Bay, Cuba as "enemy combatants," have been in the news. The last rush of publicity in the spring had to do with plans to build execution chambers and try them in secret with government prosecutors and defense attorneys. Then Blair got feisty and wanted the British subjects held there not to face death. Alright, Bush said, we won't shoot your guys, out of gratitude for your putting your asses on the line for us in Iraq.

Then there was the news of the juveniles held there--we now find that some were as young as 13. We have not heard of their fates yet, only that they were held separately from adults and are being "schooled."  That's a new twist on the Administration's "no child left behind" policy, isn't it?

Few Americans care about the prisoners, captured in Afghanistan and brought to Cuba about 18 months ago. Hell, they must have been up to no good, or they would not be here.  That is about what Rumsfeld says, too. They might not be "terrorists," but they are troublemakers.

Previous efforts to get some legal relief for these men--to require that they be charged and tried or freed, to provide them with attorneys, to provide them with meaningful contact with families--were stopped at the courthouse door. A federal judge said, in one of the more idiotic catch-22 lines of logic, that they were not on American soil, so they could have no access to American courts.  Forget that we control Guantanamo Bay. So the prisoners are in a legal nether world--subject only to the ad hoc, ex post facto regulations Rumsfeld and Wolfowitz make up as they go along.

But the Center for Constitutional Rights is trying once to get the plight of these men before the U.S. legal system.

On Tuesday, the Center for Constitutional Rights asked the Supreme Court to review the controversial decision by the DC Circuit denying counsel to alleged terrorists being detained by the United States at its naval base on Guantanamo Bay, Cuba. The issue presented in the case, Rasul v. Bush, is whether enemy combatants being tried in military tribunals are entitled to any of the due process rights to which they would be entitled in U.S. courts. The Court has already rejected one petition to review the case, on procedural grounds. Its decision on this petition is expected this fall.

 

Posted by Elaine Cassel at September 6, 2003 6:29 AM

 

Say No to "Sneak and Peek"

Filed under: Imported

Congress has returned from summer recess and will be addressing several pieces of legislation that directly affect civil liberties.

The Senate will soon begin considering an important bill that responds to recent government actions and several of the PATRIOT Act's most grevious provisions -- including one that allows government agents to conduct "sneak and peek" searches of your home or office. Not only would the bill require a higher standard of proof before allowing government access to highly private and sensitive data (such as library, bookstore and medical records), it also bans federal agencies from engaging in "data-mining" without explicit congressional authorization.

This legislation would correct many of the PATRIOT Act's flaws and protect constitutional rights threatened by other government actions. It deserves your full support.

The House of Representatives has already voted overwhelmingly to cut funding for these searches. They are taking a lot of heat from Ashcroft for doing so.  Let your Senators know that they should show similar courage and that you will remember them for it (or the lack of it) when they come up for reelection.

Take Action! Click here to get more information and send a free fax to your Senators. 

We know that this type of activisim sometimes is effective. The 3rd Circuit Court of Appeals has put a stay on the FCC's new media ownership rules. The 2 million pleas from Americans like you to the FCC were ignored by Chairman Powell but not at least one court.

So many of you write and ask me what you can do. Do this! And pass this along to your friends.

 

Posted by Elaine Cassel at September 4, 2003 6:24 AM

 

Bad News for Prosecutors: 122 Condemned Prisoners May Not be Executed

Filed under: Imported

On September 2, 2003, the Ninth Circuit Court of Appeals ruled in the case of Summerlin v. Stewart that death sentences imposed by judges rather than juries must be set aside.  A logical outgrowth of two recent Supreme Court decisions, the Ninth Circuit's decision could lead to the technical commutation of sentences of more than 122 prisoners in Arizona, Montana, Nevada, and Idaho. That is, unless prosecutors ask for and seek a stay of the decision pending an appeal to the U.S. Supreme Court. These are the four states within the jurisdiction of the Ninth Circuit that utilize judges, not juries, to sentence defendants in capital cases.

The high court will surely review the decision, given the sheer numbers of sentences involved. And a Supreme Court decision that reverses the Ninth Circuit would be tough to justify. For in its landmark ruling in 2000 in the case of  Appredi v. New Jersey, the Court held that juries must decide beyond reasonable doubt every fact that leads to the imposition of an increased penalty for the defendant (e.g., a 20-year as opposed to a 10-year sentence based on the amount of drugs sold). Such determinations must not be made by judges, the Court said.

The court extended this logic to the death penalty last year in Ring v. Arizona, ruling that juries must determine the factual bases for death sentences. In so ruling, the justices invalidated judge-based capital sentencing systems in Arizona, Idaho, Montana, Colorado and Nebraska.

What the high court did not decide was whether or not its ruling must be applied retroactively or only to sentences after the date of the Court's ruling. The Ninth Circuit, in an 8-3 majority of all sitting judges, essentially said that the Ring ruling had so transformed the constitutional framework governing the imposition of death sentences that it would be unconstitutional to execute someone who had been sentenced under a pre-Ring system.

According to The Washington Post, If the Ninth Circuit ruling is upheld, the impact could extend to Nebraska and Colorado, which had similar laws to Arizona, Idaho and Montana, and where an additional nine death row inmates might benefit, according to Deborah Fins, who tracks the death-row population for the NAACP Legal Defense Fund, an anti-capital punishment organization.

Four other states, Florida, Alabama, Delaware and Indiana, with a total death row population of 632, have used hybrid systems in which juries advise judges, but judges make the final call. These systems may also face court challenges under Ring.

Imagine how this news upsets prosecutors (especially the chief prosecutor in the land, Attorney General John Ashcroft), who cherish the death penalty and will stop at nothing to see it imposed. You can be sure they are pouring over the decision and poking holes in it sufficient to convince the Supreme Court that retroactively applying a decision is unfair--that people dying after the Court has said the process is illegal is a fine thing.  When the state assumes the role of "Deity," the opinion said, it better be right.  It is not right to say that tomorrow's defendant must be sentenced to death by a jury, but for yesterday's accused, death will do. Responding to the three dissenters, the majority challenged this "warped" view of justice: 

Is it possible that prisoners will now be executed by the state solely because of the happenstance that the Supreme Court recognized the correctness of their constitutional arguments too late--on a wholly arbitrary date, rather than when it should have?  Will we add to all of the other arbitrariness infecting our administration of the death penalty the pure fortuity of when the Supreme Court recognized its own critical error with respect to the meaning of the Constitution?  Can we justify executing those whose legal efforts had reached a certain point in our imperfect legal process on the day the Supreme Court changed its mind, while invalidating the death sentences of those whose cases were waiting slightly further down the line?

 ...218f our society truly honors its constitutional values, it will not tolerate the execution by the state of individuals whose capital sentences were imposed in violation of their constitutional rights. It should not take a constitutional scholar to comprehend that point.

Whether the high court will muster a majority that is as morally outraged as the Ninth Circuit remains to be seen. It may not take a constitutional scholar to comprehend the unfairness of killing people whose appeals were completed before Ring. But it will take five of nine Supreme Court justices acting boldly and compassionately and resisting political pressure to go along with the arbitrary machinery of death grinding away day to day in the death houses of American prisons.

Posted by Elaine Cassel at September 3, 2003 6:22 AM

 

Innocent, But Guilty

Filed under: Imported

Recently I exchanged emails with Bruce Jackson, SUNY Distinguished Professor and Samuel P. Capen Professor of American Culture at SUNY Buffalo and editor of The Buffalo Report.  We were communicating about the use of narrative in court trials. I shared with him my belief that the prosecution and the defense put forth the best "story," or version of the facts, that will convince a jury either to convict or acquit.  Sometimes the "right" story wins--and justice is done. Just as often, I believe, the "wrong" story prevails, and innocent people are convicted.

Given this adversarial system that puts the lawyers in charge of the evidence that the jury hears, it is no surprise that guilty people are acquitted and innocent people convicted. The availability of sophisticated DNA tests had been expected to bring factual accuracy to criminal trials. DNA tests, in some cases, can rule out a suspect as the perpetrator.  But, ironically, DNA testing, which has led to the release of scores of people from prison, even death row, is becoming a victim of its own success.  Prosecutors are sick of releasing people based on DNA tests that tend to exonerate them. 

So what are they doing?  As reported in an editorial in The New York Times, they are doing whatever they can to keep those exonerated in prison or retry them without the DNA evidence. Ignorantly, some prosecutors point to eyewitnesses who can "swear" they saw the victim "do it," this in spite of extensive research about eyewitness testimony that shows it to be among the least reliable of courtroom evidence. The Department of Justice even went so far as to write guidelines for the use of eyewitness evidence, which, if adhered to, would reduce the number of falsely accused and convicted persons. These guidelines are not, sad to say, mandatory.  And prosecutors loathe to free an innocent person will scour around for someone willing to swear they saw the accused "do it."

Some states make prosecutors' jobs easy by having an extremely limited time period within which a convict can bring up evidence of innocence. Virginia has a 21-day rule that guarantees that no one can have his day in court to present new exculpatory evidence.  Such evidence is often not available for years. Convicts have no access to physical evidence used against them; few have the money to afford legal counsel and the DNA tests themselves.

If the 4th (unreasonable searches and seizures), 5th (due process of law), 8th (prohibition against cruel and unusual punishment) and 14th (equal protection of the laws) amendments to the Constitution mean anything, they mean that our system ought to do anything within its power to keep innocent people from being found "guilty" and locked away or executed.

It is a disgraceful state of affairs when prosecutors vow to do all they can to keep innocent people behind bars. When they prefer convictions to justice, and finality--even if dead wrong--to truth.

Posted by Elaine Cassel at September 2, 2003 12:22 AM

 

« August 2003 | Main | October 2003 »