Topic: The Law
And then there's the real world. There's the nasty Nancy Grace on CNN Headline News saying who is really guilty in real cases, and why, and a there's whole cable channel - Court TV - for those who need this sort of thing all day, all the time. From OJ to Michael Jackson, we all tune in to the case of the day, or at least many do - more than enough viewers to sell the advertising slots at a fine rate.
So what were the big cases that fascinated folks in the middle of August, 2006?
Just glancing at the news, the winner, by maybe a ten to one margin, was this - "The breakthrough arrest of a suspect in the long-unsolved murder of six-year-old JonBenet Ramsey started to look distinctly shaky yesterday, as legal experts and former investigators in the case poked holes in the confession of expatriate schoolteacher John Mark Karr and even Colorado prosecutors said they were proceeding cautiously."
Well, it had sex, and dead child, and a pervert. Karr was arrested in Thailand on Wednesday and was paraded before reporters. He claimed he was with the kid when she died in the basement of her family home in Boulder in 1996 and that her death "was a horrible accident for which he took responsibility." The Thai officials said he had admitted drugging her and having sex with her before she died, but then that just didn't match the autopsy results - no drugs or alcohol in her system. The former Denver prosecutor said "this confession seemed delusional" and added - "He looked like a drugged-out Lee Harvey Oswald." The Thai immigration police backed off - he had only told them whole encounter was "a blur." Sorry about that.
The case is ten years old. The mother, once a suspect, and who dressed the kid like a little hooker and entered her in beauty contests, died a while back. And the case is not very significant in the greater scheme of things. Outside the family, whatever happened is, really, nobody's business. It's certainly a bad business, but means little. It's just titillating and slightly freighting entertainment for those whose lives are a bit dull. If you live a life of "quiet desperation" it's best to import some nasty stuff you can safely contemplate, as it has nothing to do. It fills the time.
The loser, by ten to one, receiving far less coverage, was this - a federal judge ordered all entities to stop participating in warrantless surveillance because the National Security Administration's program is unconstitutional. The president had to stop that stuff - it violates First and Fourth Amendments by monitoring communications without warrants and "interfering with the ability of journalists and scholars to do their jobs." She ordered an immediate halt to it all. You want to tap phones and read email? Get a damned warrant, just like it says in the constitute, and use the system set up by law in 1978 for such things. District Judge Anna Diggs Taylor up Detroit (US District Court for the Eastern District of Michigan) was blunt - although she dismissed the argument that data-mining should be subject to obtaining warrants, saying perhaps those could not be discussed without revealing state secrets. The administration had boasted about the phone and email business, and said they had the right to break the law and ignore the constitution. They hadn't said anything about data-mining, so maybe that was off limits to the plaintiffs - secret stuff.
But the thrust of the matter was clear - listen all you want, go after the bad guys, but follow the law. If you're dealing with US citizens, the rules are you get a warrant. It's kind of a no-brainer. Do your job, but don't jerk us all around, saying the law just doesn't matter any longer.
This is not sexy, and it's not titillating stuff, but it kind of does matter to everyone. If laws don't matter any longer we're in a world of hurt, unless you implicitly trust the authorities in power. Some do. Some don't.
An this decision is the first ruling by any court on the legality of the NSA program - one that was secret until it was revealed, so to speak, last December by the New York Times. And it rejected every single argument the administration made to defend its "right" to eavesdrop without warrants. And too the court also rejected the administration's claim that mere "adjudication by the court "of the legality of this NSA program would risk the disclosure of "state secrets." They say that all the time about stuff they don't want reviewed in any court (see this). But that didn't fly here. They'd already talked about it quite enough, and no more details were actually necessary.
The decision has already been appealed by the administration to the 6th US Circuit Court of Appeals, conservative-leaning some say, and the parties have agreed that the Michigan District Court's order will be stayed until September 7 - it won't be enforced. We'll see what happens then.
But to be clear about what this decision means and what it does not mean - it does not prohibit eavesdropping on terrorists. It prohibits illegal eavesdropping in violation of the clear law in the matter. The White House is saying this is a real blow to the administration's efforts to fight terrorism (see this press release), but doesn't explain how the law was getting in their way. They seem to assume everyone knows it was.
But just what does everyone know? Some perspective is in order. But where do you go for that?
There is Erwin Chemerinsky. He's been at Duke since July 2004, but spent twenty-one years out here, not in Hollywood but at the University of Southern California Law School - a professor of Public Interest Law, Legal Ethics, and Political Science. His four textbooks are standard. In April 2005, was named by Legal Affairs as one of "the top 20 legal thinkers in America." There's also the 2003 President's Award from the Criminal Courts Bar Association. the 2003 Freedom of Information Award form the Society for Professional Journalists, the 2001 Community Service Award from the Anti-Defamation League, the 2001 Clarence Darrow Award from the People's College of Law. Take that Spencer Tracy. And he's argued the big cases - Van Orden v. Perry (a challenge to a Texas Ten Commandments monument) and Tory v. Cochran (a First Amendment case concerning the permissibility of injunctive relief as a remedy in defamation cases), and in the Supreme Court Scheidler v. National Organization for Women (suit for injunction to stop violent protests of reproductive health care facilities) in November 2005. He testified before the Senate Judiciary Committee on the hearings of Samuel Alito for confirmation to the Supreme Court in January 2006. He might know something.
And he says this -
That's clear. Why was there even an argument about it? The administration decided against meeting the requirements for a warrant and probable cause mandated by the Constitution and specific federal statutes. The judge had little choice here. The president has no such power.
But here's the problem -
But they didn't. The obvious question is why. Put on your tin-foil hat and work on that a bit.
Chemerinsky goes over the argument that the Joint Resolution Authorizing the Use of Military Force, that authorized the wars in Afghanistan and Iraq, and notes the Supreme Court shot that down in the Guantánamo case (Hamdan v. Rumsfeld) - it did not provided the necessary authority for it to set up those special military commissions to try the folks there and could be taken to override specific statutes and treaties. The thing gave the president permission to use troops and take military actions - it said nothing about special military commissions, and it this case, it said nothing about eavesdropping electronically on US citizens. Neither is military force. That's kind of obvious.
As for the flak coming down now -
She was just doing her job.
And he offers this perspective -
We'll see what happens. Suddenly Joe Lieberman's breaking with his party to support the nominations of Alito and Roberts matters more now.
But what does this guy know? In a smug and nasty editorial here the Washington Post says the ruling just wasn't sufficiently thoughtful. The warrantless wiretapping program "exists on ever-more uncertain legal ground" but this ruling was "neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting." Maybe something you need a bludgeon?
The Wall Street Journal just gets hysterical here - they accuse this judge of gunning for a "Civil Libertarian of the Year" award and then complain that voters will have no way to hold her accountable for "any Americans who might die as a result" of her ruling. And she was appointed by Jimmy Carter way back when (1979) and she's black. She must have an agenda and doesn't care of we all die. Damned liberals.
Then there's this in the National Review - "Virtually every intelligence agency in the world is pursuing al Qaeda operatives and intercepting their communications. In Judge Taylor's perfect world, only the US - the primary target of al Qaeda - would be forbidden to do so." Of course that's not what the ruling said - the intercepts were not forbidden at all - but they have to feed their readers that red meat.
And there was Rush Limbaugh with this - "Make no mistake: this enemy is all over this country. It's all over the world, and this same type of surveillance program that was used by Bill Clinton and a number of other presidents, nobody beefed about it, nobody complained about it. This is liberals, ladies and gentlemen. This is leftists."
Clinton never ordered the warrantless wiretapping of Americans' telephone calls. There was that warrantless search of Aldrich Ames' home, a search that occurred before FISA was amended to require warrants for physical searches. But what's the point of arguing?
Friday, August 18, the president himself spoke, saying it was really naïve to believe in these special time he should follow the law, with this - "I would say that those who herald this decision simply do not understand the nature of the world in which we live." Sure the fancy-pants lawyers and people who read books know the law and the constitution, but he knows the real world. He has no use for such things. Of course he's banking on the cowboy thing - people don't like thinkers and readers, they like doers who cut through all the crap. And that may work. It's worked for six years.
And who's arguing against that? Glenn Greenwald, the attorney and best-selling author of How Would a Patriot Act? - he worked at the New York firm of Wachtell, Lipton, Rosen & Katz and left to co-found the law firm of Greenwald Christoph & Holland, now Greenwald-Christoph. He has litigated cases with constitutional issues, but then he's openly gay and splits his time between Brazil and New York City - because only Brazil, and not the United States, recognizes his same-sex relationship with his Brazilian partner as the basis for emigration. Are you going to trust that sort of fellow?
Still he says this -
Well, if that writing is a little too dense, watch CNN's Jack Cafferty here be a little more succinct - the man broke the law, on purpose, and told us he did -
If someone would do their job it might be impeachment time?
See Glenn Greenwald here -
My, my, things are heating up. And conspiracy theorists wonder if Karl Rove worked with the Thai police on the timing of the arrest and confession of that strange man in Bangkok. That got most of the press. But no, that's just a lucky coincidence.
What's going to happen? We'll pay attention to the odd man who may have killed the little tarted-up beauty queen ten years ago, but may not have done that at all. It's even more scandalous that the noseless Michael Jackson and the little boys. We have our priorities. Everyone lives in Hollywood.
The ruling on the NSA program is here and the stayed injunction stopping it here. Both are in PDF format - you'll Adobe Acrobat Reader, or an equivalent, to review them. A few regular readers are attorneys. These might be of interest.