Arizona’s New White Panther Party: Money & (Anchor) Baby Hate

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Three weeks ago I woke up and started organizing my thoughts to write this post. I had no more than written the title when news started coming in hot, first on Twitter and then local news channels, that Congresswoman Gabrielle Giffords had been shot in Tucson. In a strange dichotomy, it was both an event which brought the ugly underbelly of hate in my state into even better focus than it had been before, which is the subject of this post, as well as an event which put the desire to write it, and the moment for it, on the back burner. With the filing in the Arizona legislature of twin bills at the end of this week attacking the automatic citizenship granted to U.S.-born children of illegal immigrants under the 14th Amendment, it seemed like time to return to the matter.

Specifically, we are talking about the following Arizona Legislative measures:

– House Bill 2561 and Senate Bill 1309 would define children as citizens of Arizona and the U.S. if at least one of their parents was either a U.S. citizen or a legal permanent U.S. resident and therefore subject to the jurisdiction of the United States.

– House Bill 2562 and Senate Bill 1308 would seek permission from Congress to set up a system so states can create separate birth certificates for children who meet the new definition of a citizen and those who do not.

These are the provisions engendered by the hateful right wing “anti-anchor baby” effort. Arizona is, as it was with the previous “immigration papers please” law enacted in SB 1070, on the cutting edge of the national anti-immigrant and hatred of brown movement. While Arizona may be the test lab, it is certainly not necessarily the originator for these discriminatory and bigoted efforts. The “father” of the measures, leader and vocal mouthpiece for them in the Arizona legislature is State Senator Russell Pearce, newly crowned President of the state senate. Pearce worked off the template written by national movement conservative Kris Kobach for SB 1070, and the attempt to blow up the 14th Amendment birth citizenship guarantee is also being pushed by national extreme right wing movement conservatives such as Rand Paul and David Vitter.

But the point man and patron saint of anti-immigration hate in Arizona is indeed President of the Arizona Senate Russell Pearce, a former top deputy and confidant of the pernicious Maricopa County Sheriff, Joe Arpaio. When Pearce first arrived in the Arizona state legislature in 2001, it was as a state representative from the heavily Mormon (Pearce’s religion) area of Mesa, and he was known for little more than being a

…loudmouthed backbencher, unhealthily obsessed with illegal immigration.

So how did this two bit back bencher, who only came to the legislature because he was terminated as the state director of the Motor Vehicle Department for malfeasance in tampering with department records, come to be the most powerful man in the Arizona legislature? The old fashioned way, money, lobbyists and a push from the movement conservative national political machine. In short, the craziness of the ever more extreme and immigrant fear mongering national Republican party caught up to Russell Pearce’s local innate bigotry. And the big money and high powered lobbyists now backing and fueling Pearce is the story of this post.

On Friday night, January 7, a high dollar fundraiser was held for this front man for divisive hate and bigotry in Arizona, Russell Pearce. But the fundraiser was not in the middle and lower class neighborhood Pearce represents, but instead in the tony Camelback Mountain/Biltmore area of East Phoenix (picture of the estate above). As fundraising is prohibited during the legislative session that was set to start the following Monday, it was a last chance for big business and the moneyed elite to pump up Pearce and give a push to the “anti-anchor baby” legislation he had stated would be a priority as he began his new position as President of the State Senate three days later. The money for hate fest for Pearce ended less than twelve hours before Gabby Giffords, Chief Judge John Roll and approximately twenty other souls were shot down by Jared Loughner, in an act that would instantly Read more →

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Illinois Supreme Court Rules For Rahm Emanuel Ballot Inclusion

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Monday’s decision by the Illinois Court of Appeals to strike Rahm Emanuel from the ballot for the Chicago Mayoral election set for February 22 caused quite an alarm. The Court of Appeals decision appeared on its face to be quite well reasoned and well taken in light of the wording of the statute at issue. Mr. Emanuel immediately (by Monday night) filed an emergency Motion for Stay and Petition for Leave to Appeal to the Illinois Supreme Court.

The Illinois Supreme Court has just issued its opinion on the Emanuel emergency appeal and, in a decision authored by Justice Thomas, has reversed the Court of Appeals and fully reinstated Rahm’s eligibility for the ballot and office of Mayor of Chicago:

Thus, from April 1867 through January 24 of this year, the principles governing the question before us were settled. Things changed, however, when the appellate court below issued its decision and announced that it was no longer bound by any of the law cited above, including this court’s decision in Smith, but was instead free to craft its own originalstandard for determining acandidate’sresidency. See No. 1–11–0033, slip op. at 6-8 (dismissing the foregoing authority in its entirety). Thus, our review of the appellate court’s decision in this case begins not where it should, with an assessment of whether the court accurately applied established Illinois law to the particular facts, but with an assessment of whether the appellate court was justified in tossing out 150 years of settled residency law in favor of its own preferred standard. We emphatically hold that it was not.

….

All of that said, and putting aside the appellate court’s conclusion that Smith is not binding in this case, the appellate court’s residency analysis remains fundamentally flawed. This is because, even under traditional principles of statutory analysis, the inevitable conclusion is that the residency analysis conducted by the hearing officer, the Board, and the circuit court was proper.

….

Second, this court has twice stated explicitly that related provisions of the Election Code and of the Illinois Municipal Code are to be considered in pari materia for purposes of statutory construction. See Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 218 (2008); United Citizens of Chicago and Illinois v. Coalition to Let the People Decide in 1989, 125 Ill. 2d 332, 338-39 (1988).

….

So where does all of this leave us? It leaves us convinced that, when determining whether a candidate for public office has “resided in” the municipality at least one year next preceding the election or appointment, the principles that govern are identical to those embodied in Smith and consistently applied in the context of determining whether a voter has “resided in” this state and in the election district 30 days next preceding any election. Thus, in assessing whether the candidate has established residency, the two required elements are: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Once residency is established, the test is no longer physical presence but rather abandonment, the presumption is that residency continues, and the burden of proof is on the contesting party to show that residency has been abandoned. Both the establishment and abandonment of a residence is largely a question of intent, and while intent is shown primarily from a candidate’s acts, a candidate is absolutely competent to testify as to his intention, though such testimony is not necessarily conclusive.

….

Given the record before us, it is simply not possible to find clearly erroneous the Board’s determination that the objectors failed to prove that the candidate had abandoned his Chicago residence. We therefore reverse the decision of the appellate court and affirm the decision of the circuit court, which confirmed the Board’s decision.

So there will be no mistake, let us be entirely clear. This court’s decision is based on the following and only on the following: (1) what it means to be a resident for election purposes was clearly established long ago, and Illinois law has been consistent on the matter since at least the 19th Century; (2) the novel standard adopted by the appellate court majority is without any foundation in Illinois law; (3) the Board’s factual findings were not against the manifest weight of the evidence; and (4) the Board’s decision was not clearly erroneous.

Appellate court judgment reversed; circuit court judgment affirmed.

Well, although I found the Court of Appeals decision persuasive, the Illinois Supreme Court certainly did not. And they ruled unanimously in Mr. Emanuel’s favor (although two, Justices Freeman and Burke, concurred on distinguished grounds). That will end this debate once and for all. Welcome Mayor Emanuel.

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Rahm’s Ballot Eligibility Case Appeal and White House Interference

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right[Updated Below]

The decision Monday by the Illinois Court of Appeals to disallow the candidacy for Mayor by Rahm Emanuel as well as his name on the official election ballot stunned many people, and left Emanuel, his political supporters and Wall Street and Hollywood financial bag men scrambling with the ballots set for printing today and the election on the near horizon on February 22. By late Monday night, the Emanuel campaign had already filed an Emergency Motion For Stay Pending Appeal and Expedite Consideration of Petition For Leave To Appeal with the Illinois Supreme Court. A copy of the filing is here.

Within less than eight hours of Emanuel’s late night filing, at the crack of dawn on ABC’s Good Morning America, Valerie Jarrett, Barack Obama’s most senior and trusted advisor, was delivering a direct message on behalf of the White House commenting on the case and declaring they viewed Emanuel legally eligible:

I think that he believes that [Rahm is] eligible and I believe that he believes that Rahm will pursue his appeal in the courts.

I do not know about you, but I cannot think of any instance in which a White House and President, especially one so intimately related to one side of the issue, has so directly stepped into a state and local court proceeding at such a critical moment with its opinion on the ultimate legal determination.

Perhaps, under different circumstances, this would not be a notable event. However, when the President’s closest advisor weighs in with such a statement as to what the law should be, right as the sensitive matter is being presented on an emergency basis to a state supreme court, it is of highly questionable discretion and ethics. The impingement on the local situation is only exacerbated by the close ties Obama has to Emanuel, Chicago, the Daley political machine behind Emanuel (A Daley now serving as Obama’s Chief of Staff) and Illinois. It was an unnecessary and completely inappropriate meddling in a state and local judicial matter that the Obama White House had no business engaging in.

Jarrett’s imposition of the White House thumb of comment here is even more telling when juxtaposed with the consistent position she and Obama insisted on taking, and still maintain, with relation to the court process in the legal challenges to the discriminatory Don’t Ask Don’t Tell policy. Obama, Valerie Jarrett and the White House have consistently refused to take a position on how the DADT constitutional litigation should be decided in public statements and appearances and, in fact, are STILL officially supporting the disgraceful policy in courts under the guise that law must be supported and courts left undisturbed to decide the matter unfettered. Apparently such ethical and moral restraint does not apply when it comes to their friend and political crony’s local election litigation.

Which brings us to the law Mr. Obama and Ms. Jarrett are so positive stands for the eligibility of Read more →

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A New Judge For the Giffords Case and An Early Problem For Him

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As you may know, every member of the Arizona Federal Judiciary has been recused in full from further participation in the criminal case against Jared Lee Loughner. This was inevitable in light of the fact the top line murder victim in the case was their friend, and Chief Judge, John Roll. We now know who has been appointed from outside of the Arizona District to handle all further proceedings in the matter. By Order of 9th Circuit Chief Judge Alex Kozinski, that would be Judge Larry A. Burns of the California Southern District (CASD).

From Ginny LaRoe at The Reporter, comes the pertinent information:

Burns’ experience with the federal death penalty — both as a prosecutor and judge — factored into Burns’ selection, Kozinski said today.

“I wanted a judge who [was] well-respected, and had the reputation of being fair and well thought of by both sides,” Kozinski said, “and I wanted to have a judge who had some experience with the federal death penalty because that’s a possible situation here.”

As a practical matter, Kozinski said, he also considered proximity to Arizona, though a change of venue isn’t out of the question.

Burns is a 2003 Bush appointee who was a career prosecutor before ascending to the federal bench. He was an assistant U.S. attorney for California’s Southern District from 1985 to 1997 and before that was a deputy district attorney in San Diego. He became a magistrate before his promotion to an Article III spot.

Burns is, as you might expect from his prosecutorial background, a fairly no-nonsense law and order kind of judge. In addition to death penalty experience, Burns has big case experience in matters familiar to most readers here, the Duke Cunningham case and the Tommy “Special K” Kontogiannis case.

Judge Burns is out of San Diego as are, conveniently, the specially appointed Federal Public Defenders that have been assigned to Jared Loughner, Judy Clarke and Mark Fleming; they will be familiar with each other and that should makes things smoother than would be expected for such a cobbled together court process.

One other thing, as you can see from the above link regarding Kontogiannis, Judge Burns doesn’t take kindly to any gruff or shenanigans by the DOJ/US Attorneys appearing in front of him. Read more →

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Scalia Kills Corporate Personhood

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Eli alluded to this in his post on Antonin Scalia’s claim that women and gays are not included under the 14th Amendment, but I wanted to expand on it.

Scalia, one of corporate America’s biggest friends on SCOTUS, just killed corporate personhood.

What other conclusion can you draw after reading Scalia’s assertion that the 14th Amendment only applies to slaves and not women or gays or–he doesn’t say it but it would follow logically–corporations?

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

It was the Fourteenth Amendment, after all, that was used to grant railroad corporations the same rights as you and me. Here’s how Thom Hartmann describes it.

But in any case, before the Supreme Court the Southern Pacific Railroad argued in this case that the 14th amendment which says ‘no person shall be denied equal protection under the law’ should apply to them as a corporation. In other words, that as a corporation they should have rights under the constitution because the 14th amendment, when it was written to free the slaves in the 1870’s, the 14th amendment didn’t say ‘no natural person shall be denied equal protection under the law.’ Instead it says ‘no person.’ And for hundreds of years of common law we had this distinction between natural persons, you and me, and artificial persons: churches, governments, corporations.

If the Fourteenth Amendment shouldn’t be applied to women and gays, then it sure as hell shouldn’t be applied to railroads, right?

Is there something more going on (and I’m sure there are a lot of you out there that will explain this to me)? I’m wondering whether, in anticipation of severely reversing the application of the Fourteenth Amendment (perhaps in anticipation of a gay rights case, perhaps to support conservative efforts to overturn birthright citizenship), Scalia is laying the basis for corporate protections elsewhere?

After all, in Citizens United, Scalia very carefully rooted his concurrence in the First Amendment alone, not the Fourteenth. But note how he very carefully takes the opposite approach to the First Amendment that he does with the Fourteenth Amendment: that in spite of the dissent’s extensive description of the founding fathers’ caution about corporations, so long as they didn’t explicitly exclude any speakers, they must be assumed to have included corporations–incorporated associations–in their intent.

The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment . It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form.

[snip]

There were also small unincorporated business associations, which some have argued were the “ ‘true progenitors’ ” of today’s business corporations. Friedman 200 (quoting S. Livermore, Early American Land Companies: Their Influence on Corporate Development 216 (1939)); see also Davis 33. Were all of these silently excluded from the protections of the First Amendment ?

The lack of a textual exception for speech by corporations cannot be explained on the ground that such organizations did not exist or did not speak.

[snip]

The dissent says that when the Framers “constitutionalized the right to free speech in the First Amendment , it was the free speech of individual Americans that they had in mind.” Post, at 37. That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons.

[snip]

But to return to, and summarize, my principal point, which is the conformity of today’s opinion with the original meaning of the First Amendment . The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion.

Maybe the answer is just that Scalia’s a raging hypocrite and we shouldn’t take his inconsistencies very seriously because he’s always inconsistent. But I do wonder whether there’s something more going on, and would love to know what you all think?

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9th Circuit Punts On Perry Prop 8; Certifies Standing To California

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Liberty & Justice by Mirko Ilic

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt. The main opinion is in docket No. 10-16696, where the effective docket order reads:

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text).

….

The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.

Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, comprise the same effective case. In the second one, Docket No. 10-16751, the part of the action initiated by Imperial County attempting to intervene and provide governmental cover for standing on appeal, the effective corollary docket order reads:

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.

In the second cause number, 10-16751, the court issued a 21 page per curiam (by the whole panel collectively) opinion addressing the Imperial county attempt at intervention. the court held:

None of the Imperial County movants has demonstrated a “significant protectable interest” at stake in this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

The court effectively laughed at the attempt to use Deputy County clerk Isabel Vargas as a mule for intervention, wondering why the hell a minion would be used instead of, you know, the actual County Clerk. A real valid question, and the court found no good answer. The court similarly found that the Imperial County Board of Supervisors was not a proper vehicle, stating “…the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair'”. The court rounded out the fisking as follows:

Moreover, the duties of the Supervisors themselves are not directly affected by this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own, apart from those claimed by Vargas or the Board of Supervisors.

So, in a nutshell, the argument by Imperial County that they were entitled to intervene as a matter of right was denied in full. Oh, and the 9th also found that Vaughn Walker was correct in finding no necessary basis for permissive intervention by Imperial County as well, and affirmed that denial. So Imperial County, unless they get some appellate relief, which is unlikely, is toast.

And, so that completes the fun today, right? Oh no! We have more! The estimable Judge Stephen Reinhardt lodged a concurring opinion that is a little, shall we say, more interesting. I will excerpt a few key quotes, but this one is only ten pages long and is well worth the read. I think you will quickly understand why I have said Reinhardt is such a wonderful treasure as a judge.

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.

The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves.

Reinhardt’s disdain for the avoidance of meritorious claims on technical standing issues just drips off the pages. Indeed he cites his own previous tomes on just this subject in a prominent footnote (See footnote 3 for the cites). But as to the instant case, Reinhardt acidly remarks:

All I can say now is that the issues concerning standing were wholly avoidable in this case.

He goes on to take a crystal clear shot directly at the broadside of Ted Olson and David Boies for filing their action, and obtaining their relief, against one two of the 58 counties in California:

Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.

Ouch. Reinhardt then goes on to blast Schwarzenegger and Jerry Brown, the Governor and Attorney General at the time respectively, for not giving the intervenors appellate cover (as I have consistently carped about as well) and Imperial County for the incredibly lame effort of trying to appear through a common deputy clerk. Reinhardt is spot on in each of these regards.

The last paragraph from Steve Reinhardt’s concurring opinion summarizes where the case stands, and is likely to do so better than I could, so I am going to let him speak:

None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.

The one last parting thought I have is that this California Supreme Court certification process is likely to take some time. Six months would be a miracle, a year is far more likely. First off, the California Supreme Court does not have to accept consideration, and there will be a briefing process on whether they even should do that. Assuming they then accept consideration on the merits, and I do think it extremely likely they will, there will then be a full briefing schedule on the merits before any decision.

It would have been expected that the Court under Chief Justice Ron George (very nice article here) would take this up, but he just left and the new Chief Justice, Tani Cantil-Sakauye, literally was just sworn in yesterday. She is known as being cautious and moderately conservative, but fair and open minded. Which, really, is probably a fair description of Ron George, so there may not be that much of a change at the top of the California Supremes.

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

UPDATE: Here is Judge Reinhardt’s collateral final order on the earlier motion to disqualify him that he previously denied long before oral argument.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

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Obama/Bush DOJ Update to OLC Christmas Carol

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Earlier I linked to and posted the oh so hilarious (if you appreciate the humor in the supposed creme de la creme of government attorneys laughing about breaking the law and violating citizens’ rights) Christmas carol drafted by the DOJ’s Office of Legal Counsel (OLC) all the way back during the Carter Administration. It seems to be making a comeback through a post at Volokh Conspiracy.

Well, through what can only be described as a Christmas miracle, our very own Mary has “discovered” the new version, as updated by the Obama/Bush OLC:

You’d better watch out,
look up in the sky,
You’d better not doubt;
Better say your good bye.
Santa Claus is droning
Your home.

He’s paying out bounties,
For kids he pays five,
He’s razoring genitals
And burying alive.
Santa Claus is beating
the prone

He hears you in your cages,
Videotapes your screams and moans,
After sharing with Senate pages,
Then he’ll freeze you all alone

So–you mustn’t believe
In Justice tonight.
On Christmas Eve
She’s lost more than her sight
The OLC will help with hiding
Your bones.

As Mary noted, “Those jokers at OLC. At least they enjoy their work”. Indeed. With “wise men” like John Yoo, Jay Bybee and Steve Bradbury, what could go wrong?

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State Secrets Santa and SCOTUS

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Amid all the holiday hustle, bustle and, on at least some of the lame duck session accomplishments, success of Barack Obama, it is good to keep in mind what a lump of coal his administration has been on civil liberties and privacy. Nothing has been more emblematic of the cancer they have been in this regard than the posture they have relentlessly fought for on unfettered and unilateral ability of the Executive Branch to impose the state secrets doctrine to shield the government from litigation, even when it is concealing blatant and wholesale government criminality.

Just three days ago, the final judgment in al-Haramain was entered by Judge Vaughn Walker, and it was a good one. But, lest it be forgotten, the government basically refused to defend in that case, belligerently asserting that they were entitled to dismissal on the states secrets doctrine. That will be the government’s hard nosed basis for appeal to the 9th Circuit and, eventually, presumably the Supreme Court. Recently in the 9th Circuit the horrid en banc decision in Mohamed v. Jeppesen was entered granting nearly unfettered state secrets powers to the Executive and which the ACLU filed a petition for certiorari earlier this month. Both of these cases will likely hit the Supreme Court in 2011, with Jeppesen obviously further ahead in the process.

So, 2011 is going to be a busy and critical year for state secrets litigation in the Supreme Court, but those are just the two cases you likely know about; there is another case, actually two related cases combined, already racked and ready in the queue when the Supremes return to work in January. The cases are General Dynamics v. US and Boeing Company v. US, and they are not classic state secrets cases, but may well be used as a back door by the government to advance their unrestrained use of the Read more →

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Gawker Coughs Up a Misleading Hairball On Bradley Manning

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By now you have probably heard of the serious issue regarding the dehumanizing and mentally debilitating conditions of Bradley Manning’s pre-trial detention by the US Military. Glenn Greenwald has written on the nature and import of the conditions, our own Dr. Jeff Kaye has described the medical and psychological harm from such tactics, as has Atul Gawande, and the UN Special Rapporteur has announced an investigation.

Into this serious legal, medical and psychiatric topic has stepped, of all sources, Gawker Media and its contributor John Cook with a condescending article titled “Bradley Manning Would Like Softer Blankets, Exercise, and More Television“. It is clearly a topic Cook and Gawker ought to leave to better informed and relevantly trained reporters.

Cook goes through several issues that have been noted about Manning’s detention including bedding, exercise availability and access to newspapers and television news, and casually dismisses them all individually with trite questions such as “does it sound like torture to you?”, “is it that big a deal, all things considered?”, and “is it the stuff of a U.N. investigation?”.

First off, Cook fails to consider the cumulative effect of those issues. Much more importantly, however, Cook completely ignores and fails to discuss the most important issue in the complaints about Manning’s detention conditions, the extreme isolation and sleep deprivation. This, however, is not a cute subject and should not be treated as fluff by Gawker. Dr. Jeff Kaye relates exactly how serious the isolation (which in Manning’s case must also be coupled with intentional sleep deprivation) can be on a subject such as Manning:

Solitary confinement is an assault on the body and psyche of an individual. It deprives him of species-specific forms of physical, sensory and social interaction with the environment and other human beings. Manning reported last weekend he had not seen sunlight in four weeks, nor does he interact with other people but a few hours on the weekend. The human nervous system needs a certain amount of sensory and social stimulation to retain normal brain functioning. The effects of this deprivation on individuals varies, and some people are affected more severely or quickly, while others hold out longer against the boredom and daily grind of dullness that never seems to end.

Over time, isolation produces a particular well-known syndrome which is akin to that of an organic brain disorder, or delirium. The list of possible effects upon a person is quite long, and can include an inability to tolerate ordinary stimuli, sleep and appetite disturbances, primitive forms of thinking and aggressive ruminations, perceptual distortions and hallucinations, agitation, panic attacks, claustrophobia, feelings of loss of control, rage, paranoia, memory loss, lack of concentration, generalized body pain, EEG abnormalities, depression, suicidal ideation and random, self-destructive behavior.

Most telling of the disingenuous and uninformed nature of the Cook/Gawker article is its critical reliance on irrelevant and misleading data from an impertinent study. Cook cites a University of Pennsylvania study on prison isolation:

But the bottom line is that there is nothing even remotely unusual about the conditions under which Manning is currently confined. There are literally thousands of people—by one estimate as many as 20,000 [pdf]—in this country in solitary confinement right now. It is a distressingly routine technique. To the extent that it is inhumane, illegal, unconstitutional, and violative of international law—which it may be—there are thousands of people in line ahead of Manning awaiting their U.N. investigations.

Gawker describes 20,000 people in solitary confinement in the US and equates them with Manning without noting the source they are citing is describing only prisoners that have been convicted, and most all of whom have factual circumstances requiring segregation. Manning is being held pre-trial, is presumed innocent and free and should not, according to consistent law, be imposed on or restricted any more than necessary to secure his appearance in court and safety.

In fact, there is statutory authority directly on point to this effect, Article 13, UCMJ, prohibits: (1) intentional imposition of punishment on an accused before his or her guilt is established at trial; and (2) arrest or pretrial confinement conditions that are more rigorous than necessary to ensure the accused’s presence at trial (See: United States v. Crawford, 62 M.J. 411).

I immediately notified Gawker of this critical error in their article by a response to their Twitter announcement of its publication. Gawker has not seen fit to correct their misleading and scurrilous article. Whether Gawker has the common decency to admit it or not, there is a huge difference, both legally and morally, between presumed innocent citizens being held pre-trial and convicted criminals with needs for specialized segregation or punishment. Bradley Manning is the former, not the latter.

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Vaughn Walker Issues Final al-Haramain Opinion on Damages and Attorney Fees

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As you may recall, Chief Judge Vaughn Walker of the Northern District of California (NDCA), who has handled two of the most critical and transcendent litigations of the last decade, Perry v. Schwarzenegger and al-Haramain v. Bush/Obama, is retiring. Today, he has issued his last big opinion left on his table pre-retirement, the ruling on damages to be awarded Plaintiff in al-Haramain, assignment of attorney fees to Plaintiffs, and whether or not to impose punitive damages against the government for their offending illegal conduct.

The government, in its brief objecting to the Plaintiffs’ proposed form of judgment, basically poked the court in the eye with a stick by continuing their obstreperous refusal to accept the court’s jurisdiction over their assertion of state secrets, continued to argue there were no facts competently of record despite Walker’s crystal clear determinations to the contrary, and denied that Plaintiffs were entitled to attorney fees or punitive damages. They just say NO. The Plaintiffs went on to properly lodge their calculation of damages, detailed request for attorney fees and affidavit in support thereof. Plaintiffs al-Haramain, separately, filed a very compelling brief on why the court should award them punitive damages against the government. The government, of course, objected some more.

As lead Plaintiffs counsel Jon Eisenberg stated in the punitive damages brief:

Defendants abused the extraordinary power of the Executive Branch by committing unlawful electronic surveillance of the plaintiffs with full knowledge of, and in flagrant disregard for, determinations by top officials in the Department of Justice (DOJ) that the surveillance lacked constitutional or other legal support. Defendants sought to put themselves above the law, in the manner of a monarch. That is a profound abuse of America’s trust. It calls for strong medicine.

And thus it all comes down to today’s decision by Judge Walker, and here is the full text of his 47 page order.

In short, Walker has ordered that Plaintiffs Wendell Belew and Asim Ghafoor (a-Haramain’s attorneys wrongfully surveilled) receive $20,400.00 each in liquidated damages. Walker denied damages to al-Haramain itself. In regards to punitive damages, Judge Walker has denied in full Plaintiffs’ request. As to attorney fees, the court grants the motion as to Plaintiffs Ghafoor and Belew only (again, not as to al-Haramain itself, and awards attorney fees and expenses in the amount of $2,537,399.45.

There is a lot to chew on in this order, and both Marcy and I will be coming back to do just that after chewing and digesting it further. But so far, it is clear that the court sided completely with the plaintiffs on compensatory/liquidated damages, giving Belew and Ghafoor every penny they asked for and finding the government’s opposition meritless. This passage by the court is telling: Read more →

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