| CONSTITUTIONAL
LAW
12/26/04 <link>
Church-State
Separation in the United States:
Religion in Public Schools and the Legal/Off-Courtroom Strategies of
the Christian Right
Detailed coverage is here.
6/29/04 <link>
U.S. Supreme Court rulings -
interesting statistics
Tom
Goldstein has the numbers:
|
Statistical
Analysis
|
Here
is our take on some of the numbers for this term versus
previous terms.
1. The Justices decided 74 cases after argument this Term. The
numbers of decisions after argument for previous Terms are 80
(OT02), 76 (OT01), 79 (OT00), 74 (OT99), 78 (OT98), 92 (OT97),
81 (OT96), 77 (OT95), 84 (OT94), 84 (OT93), 107 (OT92), 107
(OT91), 102 (OT90).
2. This Term returned to its previous level of 5-4 decisions,
21 of 79 (27%), up from 13 of 80 (16%) in OT02. The numbers
for previous Terms are 21 of 76–28% (OT01), 26 0f 79–33%
(OT00), 21 of 74–28% (OT99), 19 of 80–24% (OT98), 16 of
96–17% (OT97), 17 of 91–19% (OT96), 16 of 85–19% (OT95).
The number of unanimous opinions also dropped, to 25 of 79
(32%), from 31 of 80–39% (OT02). The numbers from previous
years are 26 of 81–32% (OT01), 25 of 85–29% (OT00).
3. In this Term’s 5-4 decisions, Justice O’Connor was in
the majority in 16 of 21, but authored none of the majority
opinions. Justice Kennedy was in the majority 15 times,
followed by Justices Thomas (14) and Scalia (11).
The Court’s conservative majority (WHR, SOC, AS, AMK, CT)
held together in nearly half (10 of 21) of the 5-4 cases this
Term. This figure is comparable to last year (6 of 13–46%)
and the year before (10 of 21–48%) The numbers for previous
Terms are 14 of 26–54% (OT00), 14 of 21–66% (OT99), 10 of
19–53% (OT98), 6 of 16–38% (OT97), 8 of 17–47% (OT96), 7
of 16–44% (OT95).
Four other 5-4 cases were decided by a majority composed of
the remaining four Justices (JPS, DS, RBG, and SGB) plus
Justice O’Connor. Unlike last term, in which no other
Justice “defected” from the conservative majority to join
the remaining four Justices in a 5-4 majority, this year both
Justices Kennedy (in 2 cases) and Thomas (in 1 case) defected.
In OT01, Justice O’Connor defected four times and Justices
Rehnquist and Thomas defected once each. In OT00, seven 5-4
cases were decided by these four Justices and a defector, with
Justice O’Connor providing the fifth vote four times and
Justice Kennedy three.
4. Although Justices Souter and Ginsburg continued to show a
high degree of affinity, Justices Scalia and Thomas–who
historically have been the justices with the greatest degree
of affinity–this year disagreed more often than in the last
8 years. Justices Scalia and Thomas also agreed less often
than did six other pairs of justices: Souter-Ginsburg (85% in
whole/92% in part/94% in the judgment), Rehnquist-O’Connor
(79/90/91), Ginsburg-Breyer (77/91/94), Stevens-Souter
(77/90/91), Stevens-Ginsburg (75/90/92), and Rehnquist-Kennedy
(77/86/91).
Justices Souter and Ginsburg: Their percentages of agreement
were: 85% (in full), 92% (in full or in part), 94% (in full,
in part, or in the judgment). Their numbers for previous Terms
are 88/91/91 (OT02), 86/90/94 (OT01), 79/94/94 (OT00),
81/88/91 (OT99), 82/91/91 (OT98), 82/87/88 (OT97), 75/87/91
(OT96), 78/unavail./90 (OT95).
Justices Scalia and Thomas: Their percentages of agreement
this Term were: 73% (in full), 79% (in full or part), 91% (in
full, in part, or in the judgment). The two Justices disagreed
completely 9% of the time, up from only 5% last Term. Their
percentages in previous Terms were 89/92/95 (OT02), 82/87/92
(OT01), 76/92/99 (OT00), 81/91/93 (OT99), 76/92/95 (OT98),
82/88/93 (OT97), 88/98/99 (OT96), 83/unavail./93 (OT95).
Chief Justice Rehnquist and Justice Kennedy agreed less
frequently this Term than last Term: 77% (in full), 86% (in
full or part), 91% (in full, in part, or in the judgment). In
OT02 the numbers were 86/91/93.
The Chief Justice and Justice O’Connor remained stable: 79%
(in full), 90% (in full or part), 91% (in full, in part, or in
the judgment), similar to 82/87/87 from last Term. Their
numbers for previous Terms were 71/75/79 (OT01), 73/86/86
(OT00), 87/94/95 (OT99), 79/86/87 (OT98), 80/86/88 (OT97),
73/82/84 (OT96), 78/unavail./87 (OT95).
Measured by agreement in full or in part, the pairing with the
lowest affinity this Term was Justices Stevens and Scalia.
Their percentages of agreement were: 38% (in full), 51% (in
full or part), 60% (in full, in part, or in the judgment).
This is a drop from their affinity last year, 53/57/66 (OT02),
and a return to their affinity from previous years: 36/46/53
(OT01), 36/52/60 (OT00). Excluding the 25 unanimous cases from
this Term, Justices Stevens and Scalia agreed in full only 5
times, and disagreed completely 31 times (40%).
The pairing last year with the lowest affinity was Justices
Thomas and Breyer, with 50/53/66 (OT02). Their affinity
declined slightly this year at 45% (in full), 53% in full or
part, 64% (in full, in part, or in the judgment).
5. As usual, Justice O’Connor was in the dissent the least
often. She dissented in just 5 of the Court’s 79 cases,
significantly fewer than the next-least-dissenting justice,
Justice Kennedy, with 10 dissenting votes. Last Term, Justice
O’Connor dissented 5 times, as compared with 10 (OT01), 8
(OT00), 4 (OT99), 7 (OT98), 11 (OT97), 10 (OT96), 8 (OT95). |
6/28/04 <link>
Supreme Court rules on "enemy
combatant" and detainee cases
It is no exaggeration to state that the
entire core of the U.S. as a country, and what it stands for, was at
stake in these rulings. As these excerpts from
other blogs show, there is some good news finally. This gives us some
hope that the U.S. may gradually return to being the country that was
admired not too long ago - for what it stood for. Via
Atrios, we have SCOTUS
blog:
|
No
presidential monopoly on war powers
|
The
Supreme Court's first review of the Bush administration's
handling of the war on terrorism may force a fundamental
reordering of constitutional priorities, especially in the way
the government may deal with individuals caught up in that
war. Amid all the writing by the Justices in today's three
historic rulings, no sentence stands out as vividly as this
one, "A state of war is not a blank check for the
President when it comes to the rights of the Nation's
citizens."
Given the almost limitless claims to presidential power that
the administration has been making in court cases and other
forums since soon after the September 11, 2001, attacks, that
statement - and all that it stands for in the new rulings -
must be taken as a severe rebuke.
In countless courtroom briefs, and in a pile of secret
internal memorandum only recently beginning to emerge,
administration lawyers have sought to justify a new order in
which the president may do whatever is deemed necessary to
wage this new style of global conflict. That argument appears
to have failed utterly, in the eyes of eight Justices of the
Court.
Here, in summary, is a first look at a new constitutional
order that may arise from the new decisions:
1. In general, the courts are open and functioning, and they
will insist upon a full partnership in judging the
constitutional necessity of wartime actions that affect
individuals - citizens and, sometimes, foreign nationals, too.
2. Congress would be constitutionally entitled to exercise a
fuller role, if it were so inclined, as a co-manager of the
war when that conflict impacts individual rights.
3. Citizens - even those deemed to be terrorist suspects - can
no longer be detained indefinitely and without any rights that
the Pentagon does not want them to have.
4. Even foreign nationals rounded up and placed at an offshore
Navy base - in Guantanamo Bay, Cuba - are constitutionally
entitled to contest their detention, perhaps even when that
might interfere with military interrogation of them, seeking
to gain intelligence information.
In historic terms, the new rulings are at least as serious a
setback as the Executive branch suffered in 1952 when the
Court, in the midst of the Korean War, struck down President
Truman's seizure of U.S. steel mills to keep them open to
produce war materiel. (Youngstown Sheet & Tube Co. v.
Sawyer)
"History and common sense," the Court said today,
"teach us that an unchecked system of detention carries
the potential to become a means of oppression and abuse of
others who do not present. . .an immediate threat."
In language unmistakably placing the Court in the forefront of
the constitutional battles that will continue to be waged so
long as the war on terrorism continues, Justice Sandra Day
O'Connor's lead opinion declared: "Striking the
constitutional balance here is of great importance to the
Nation during this period of ongoing combat. But it is equally
vital that our calculus not give short shrift to the values
that this country holds dear or to the privilege that is
American citizenship." There can no longer remain any
doubt that "striking the constitutional balance"
will be done by the courts, not by the Executive or by
Congress. No can there linger any doubt that when the opinions
speaks of "our calculus," it meant judicial
calculus. It is noteworthy that this view of judicial
authority was shared today by all but one of the Justices (all
but Clarence Thomas); seldom does this often-divided Court
hold together so cohesively on the division of governmental
powers.
The President, of course, did not lose everything he had at
stake. By a vote of 5-4, the Court ruled that Congress'
post-9/ll declaration supporting the President's response to
those attacks had authorized the Executive to capture and
detain, perhaps even until the end of the war on terrorism,
those suspected of being terrorist activists acting in open
aggression toward the U.S. Even so, the Court did not
necessarily embrace that as an enduring constitutional
concept: it added that the idea of detention for the duration
of a conflict had emerged from the era of traditional wars,
and then commented: "If the practical circumstances of a
given conflict are entirely unlike those of the conflicts that
informed the development of the law of war, that understanding
may unravel." In other words, a war on terrorism that has
no end may turn out to be too long for the Justices to go on
allowing indefinite detention.
The most important qualification on that now-acknowledged
power to detain, however, is the Court's mandate that when a
detainee is a U.S. citizen, the detention can continue beyond
an initial - and presumably fairly brief - period, only if the
government can justify prolonging the denial of freedom and
legal rights. And, such justification is to be judged by a
"neutral decisionmaker," not by the President or the
Secretary of Defense or a military authority.
Acknowledging that this review process may not necessarily
have to be in a regular civilian federal court, the Justices
suggested that such a proceeding might possibly be allowed
before a military tribunal. The Court stressed, nevertheless,
that such a tribunal would have to be "appropriately
authorized and properly constituted." That seems to imply
that it would not be enough simply to have the President sign
an Executive Order, and that Congress may have to do so by
legislation. Moreover, any such tribunal must have the full
attributes of independence and neutrality that the Justices
indicate they are demanding. (Even if such tribunals are
created, their makeup, of course, will be subject to future
constitutional challenge, if those that emerge seem to fall
short of the standards articulated by the Court.
In one aspect of the new decisions, the President seems
actually to have lost everything: that was the insistence that
the American courts have no role whatsoever to play in
overseeing the operation of the big detention facility set up
at the Navy base in Guantanamo, Cuba. That base was set up in
that very place to place foreign nationals at a site beyond
the reach of American courts. It was, its challengers have
always said, meant to be a "lawless" place. From now
on, though, the detainees there have at least some right to
contest not only the fact of their detention at the base
prison, but also to challenge the actual conditions under
which they have to live day by day.
With that ruling, the Executive branch effectively had to
forfeit a substantial amount of its control over the entire
Guantanamo operation.
These were the specifics of the three rulings today:
By a vote of 5-4, the Court found the 2001 congressional
declaration did give the President power to detain citizens
and foreign nationals, if they are found on a foreign
battlefield.
By a vote of 8-1, citizens detained as "enemy
combatants" have the right to a fair process under which
they can challenge that designation and their continued
detention.
By a vote of 6-3, the Court ruled that the foreign nationals
detained at the Cuba base have a right to file lawsuits in
civilian courts to contest their detention and conditions at
the base. |
More from SCOTUS blog here:
|
Hamdi
and Padilla Appear to be a Huge Loss for the
Government
|
This
is based upon a very cursory first read, but it appears to me
that Hamdi and Padilla in conjunction are a
huge loss for the Government. (Lyle Denniston will be
providing further analysis shortly.) The Government, recall,
acknowledged that detention of these persons was necessary and
proper principally for purposes of interrogating them for
intelligence reasons. (Hence the denial of counsel, etc.; see
the Jacoby
Declaration in Padilla.)
In Padilla, it appears that only four Justices reach
(or even discuss) the question of the lawfulness of the
detention. Justice Stevens writes that "the Non-Detention
Act, 18 U. S. C. 4001(a), prohibits -- and the Authorization
for Use of Military Force Joint Resolution, 115 Stat. 224,
adopted on September 18, 2001, does not authorize -- the
protracted, incommunicado detention of American citizens
arrested in the United States." He continues:
"At stake in this case is nothing less than the essence
of a free society. Even more important than the method of
selecting the people's rulers and their successors is the
character of the constraints imposed on the Executive by the
rule of law. Unconstrained Executive detention for the purpose
of investigating and preventing subversive activity is the
hallmark of the Star Chamber. Access to counsel for the
purpose of protecting the citizen from official mistakes and
mistreatment is the hallmark of due process. Executive
detention of subversive citizens, like detention of enemy
soldiers to keep them off the battlefield, may sometimes be
justified to prevent persons from launching or becoming
missiles of destruction. It may not, however, be justified
by the naked interest in using unlawful procedures to extract
information. Incommunicado detention for months on end is
such a procedure. Whether the information so procured is more
or less reliable than that acquired by more extreme forms of
torture is of no consequence. For if this Nation is to remain
true to the ideals symbolized by its flag, it must not wield
the tools of tyrants even to resist an assault by the forces
of tyranny."
In Hamdi, four Justices, including Justice Scalia,
conclude that Hamdi's detention itself is unlawful -- a result
that Hamdi himself barely argued for (his briefs being more
focused on the opportunity to challenge his enemy-combatant
status). Four other Justices -- Justice O'Connor, joined by
the Chief Justice and Justices Kennedy and Breyer -- conclude
that Congress's 9/18/01 Authorization for Use of Military
Force (AUMF) authorizes detention of a "narrow"
category of citizens: those who are "part of or
supporting forces hostile to the United States or coalition
partners" in Afghanistan and who "engaged in an
armed conflict against the United States there."
They read the AUMF to authorize detention of such citizens
"for the duration of the particular conflict in which
they were captured" (because, says the plurality, such
detention "is so fundamental and accepted an incident to
war as to be an exercise of the 'necessary and appropriate
force' Congress has authorized the President to use").
The plurality goes on to emphasize, however, that the
detention must be "to prevent a combatant's return to the
battlefield," which the plurality views as "a
fundamental incident of waging war." This means that
Hamdi can be held, the plurality concludes, not until
the end of the "war on terror," which the plurality
acknowledges may not come in Hamdi's lifetime, but instead
only until the end of the "active combat operations in
Afghanistan." And here's the key sentence:
"Certainly, we agree that indefinite
detention for the purpose of interrogation is not authorized."
This should mean that Padilla's detention -- which the
Government acknowledges is principally for the purpose of
interrogation -- likewise is not authorized. Even if Justice
O'Connor's opinion might not conclusively dictate that result,
there appear to be (at least) five votes for it: the four
dissenters in Hamdi (Justices Souter, Ginsburg,
Scalia and Stevens), as well as Justice Breyer, who joins the
Stevens dissent in Padilla. |
Some summary comments from Prof.
Balkin, via Michael
Froomkin (Discourse.net):
6/30/03 <link>
Supreme
Court makes remarkable death penalty ruling
David Stout's report in the New York Times made us thrilled that this
Supreme Court continues to surprise us. Here are some snippets:
"...The Supreme Court
spared the life of a convicted killer in Maryland today, declaring
that his inexperienced lawyers had let him down at his trial 14 years
ago.
In a 7-to-2 vote in which they reiterated the need for an adequate
defense in death-penalty cases, the justices threw out the sentence
imposed on Kevin Wiggins, a borderline retarded man with no prior
record who was convicted of drowning an elderly Baltimore County woman
in 1988 in the apartment complex where he worked as a painter and
handyman.
At his trial in 1989, Mr. Wiggins's lawyers elected to have the
defendant tried by a judge without a jury, and the judge found him
guilty. Then a jury deliberated on what sentence to impose.
The defendant's inexperienced lawyers failed to adequately convey to
the jury the horrendous abuse he endured throughout his childhood —
from his alcoholic mother, who burned his hands on the stove as
punishment and turned him into the street to beg for food, and in
various foster-home settings, where he was subjected to sexual
assaults and beatings — the high court found today.
"The mitigating evidence counsel failed to discover and present
in this case is powerful," Justice Sandra Day O'Connor wrote.
"Given both the nature and extent of the abuse petitioner
suffered, we find there to be a reasonable probability that a
competent attorney, aware of this history, would have introduced it at
sentencing in an admissible form."
Chief Justice William H. Rehnquist and Justices John Paul Stevens,
Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen
G. Breyer agreed. The ruling leaves the conviction intact but grants a
new sentencing hearing..."
As usual it was only the bloodthirsty two (President Bush's favorite
Antonin Scalia and Clarence Thomas of Anita Hill fame who voted
against this, not surprisingly).
We have stated our opinion before
that the death penalty should be reserved only for those cases where
the guilt of the convicted person is known without *any* doubt. What
we did not emphasize then, and we do here, is that we believe it is
very critical to ensure due process and proper legal representation
for those who face the death penalty. Given the recent report by Alan
Berlow in The Atlantic Monthly that Mr. Death, er., President
Bush's White House Counsel Alberto Gonzalez rigged death penalty cases
to prevent even potentially innocent people from getting a fair shake
in Texas (while the then Governor Bush played along as he also lied
conveniently about how confident he was about the guilt of the
accused), and given Mr. Ashcroft's love for the death penalty, it is
high time we had some reasonable people in the United States who would
like to pay some attention to due process.
2/8/03 <link>
Conviction
of medical marijuana supporter/grower on Federal Drug charges enrages
jury
We quote from the Salon article, as it says it all (bold text is our
emphasis).
"...A few hours
later, Craig and her follow jurors voted to convict Rosenthal on three
federal drug charges. And about five minutes after that, Craig
discovered that she had made a horrible mistake: She hadn't been given
all the facts about Rosenthal, and she didn't have to convict him.
Rosenthal, it
turns out, wasn't the garden-variety marijuana grower that federal
prosecutors had made him out to be. In 1996, California voters
adopted Proposition 215, which allows seriously ill individuals in
need of pain relief to possess and use marijuana with the approval of
a medical doctor. Shortly after the passage of Proposition 215,
several groups formed "medical cannabis dispensaries" to
serve as a source of marijuana for those qualified to receive it. Rosenthal
grew his marijuana for one of these dispensaries; in fact, the City of
Oakland deputized Rosenthal as an official supplier for one of them.
None of this mattered to the Justice Department prosecutors who
indicted Rosenthal. Although candidate George W. Bush proclaimed that
states should be free to make their own decisions about the legality
of medical marijuana, his Justice Department since the election has
taken exactly the opposite approach, aggressively pursuing civil and
criminal actions against individuals and groups associated with the
medical marijuana movement. Californians and voters in seven other
states have legalized medical marijuana, but Washington apparently
knows better. "There is no such thing as medical marijuana,"
a spokesperson for the DEA told the Associated Press last week..."
So much for Mr. Ashcroft's support for "states'
rights". Add this to the previous positions - on assisted
suicide, gun control.
12/9/02 <link>
(UPDATED 2/8/03)
Bush-appointed
Federal Judge nixes GAO lawsuit against Vice President Dick Cheney
It is unfortunate that Judge Bates chose to display no vision
whatsoever on this crucial case, because it will
affect the future of Government in this country, whether the President
is a Democrat or a Republican! But one must ask whether this has
anything to do with the fact that he
worked as Deputy Independent Counsel to Ken Starr.
Dana Milbank reports in the Washington Post that the GAO
decided to not appeal due to lack of support from a GOP-congress
and lack of funds.
12/6/02 <link>
Ninth
U.S. Circuit Court of Appeals holds that California's ban on assault
weapons in constitutional
Court's opinion is also that gun ownership is not a fundamental right
under the Constitution.
11/8/02 <link>
California's
far-reaching abortion-rights bill
We just became aware of the passage of this Bill in CA a month and a
half ago. At a time when many states are putting abortion-rights
supporters on the defensive, California lives up to its liberal name
through far-reaching abortion-rights legislation, the first of its
kind in the nation. In this sense, California continues to show its
progressive nature that balances the regression of others in the
U.S.
As much as one may disagree on the morality of abortion (we support
the Supreme Court decision on Roe vs. Wade), it is incumbent on human
beings who protest abortions to also realize, among other things,
that:
(a) population growth in the world is astronomical - it will not keep
up with needed resources which are very scarce even today
(b) accidental pregnancies (due to birth control failures) are
impossible to prevent with 100% guarantees today, in a safe and
healthy manner,
(c) women who become pregnant due to rape or incest also have the
moral right to abort the fetus
It is hard to understand the views of those who are willing to provide
more support, attention and money to saving the lives of fetuses than
to the:
- the tens of millions of children who are in abject poverty and with
limited to no healthcare around the globe, and
- the hundreds of millions of women in poverty and with limited to no
health care around the globe, who also lack adequate birth control to
keep population from continuing to grow unchecked.
We refer you to the U.N. Population Fund's report on global
population. For instance, their
report points out, "...Population
Growing Fastest Where Needs Are Greatest....World
population will grow by 50 per cent, from 6.1 billion in mid-2001 to
9.3 billion by 2050. The 49 least-developed countries will nearly
triple in size, from 668 million to 1.86 billion people, according to
the United Nations Population Division's World Population
Prospects: The 2000 Revision. These
latest estimates and projections by the Population Division of the
Department of Economic and Social Affairs indicate that world
population is now growing by 1.3 per cent, or 77 million people per
year. Six countries account for half of this growth: India (with 21
per cent of the total increase), China, Pakistan, Nigeria, Bangladesh
and Indonesia. Some commentators
have selectively emphasized the trends of ageing and declining
populations in parts of the world to argue that continued concern
about global population growth is unwarranted. The facts suggest
otherwise: as many people will be added in the next 50 years as were
added in the past 40 years; and the increase will be concentrated in
the world's poorest countries, which are already straining to provide
basic social services to their people...."
At such a challenging time, it was of course disappointing that
politics should have played such a great role in President Bush's
recent decision to remove funds from the U.N. Population Fund. As this
BBC
note from India shows, this move will only worsen the possibility
of there being more abortions because of the lack of funding for
alternative family planning activities in developing countries.
11/5/02 <link>
Sexual
Harassment Law: CA vs. U.S.
Joanna Grossman of FindLaw reports and analyzes a recent California
Appeals Court decision denying a sexual harassment claim against the
employer, by a female bus driver, Raquel Salazar, who was subject to
routine sexual harassment and humiliation by passengers. The
Appeals Court did not deny that sexual harassment had occurred but
they interpreted the California legal statute on employer liability to
mean that employers cannot control customers and are therefore not
liable to be held guilty of promoting sexual harassment. Grossman
disagrees (and so do we) with this decision, especially because:
(a) The California legal statute does not necessarily rule out
employer responsibility entirely, especially when placing employees in
front of harmful customers is something employers have some
control over, and
(b) Federal statutes protect employees and do hold employers
responsible for harassment by customers to some extent, suggesting
that the California court could have relied on logic rather than
interpret California's statutes too narrowly.
Ultimately, balance is key. Employers who show they are willing to
address the complaints of employees effectively should face less
burden on liabilities.
We hope this case goes to the Federal courts, but we also trust that
some wise legislator adds a Bill soon in CA to clarify the nature of
the law!
10/26/02 <link>
More reasons why gun-control is going nowhere
This USA Today article depicts the sad truth surrounding the D.C. -area
serial killer-sniper case. USA Today says, "...Three
restraining orders stemming from domestic violence barred John Allen
Muhammad, one of the suspects, from possessing a firearm. The
Bushmaster semiautomatic rifle that was confiscated when he was
arrested was sold to a distributor in Washington state in June. If it
turns out that Muhammad bought it at a gun show after the orders were
issued, that could give new life to a bill requiring background checks
of prospective buyers at such events...."
New life to a gun-control bill? Not in our dreams. As long as gun-friendly rural America
controls the balance of power in the United States, our lawmakers
(including Democrats) will be loathe to take principled stands on this
topic (e.g., see this New
York Times article). Indeed, as was reported earlier, the clout of
the NRA today is so high that Attorney General John Ashcroft decided not
to enforce Brady Act provisions to establish the ownership
of guns by all
those arrested in connection with 9/11.
The sniper case is more in a growing list that shows how woeful the control over illegal weapons
are in this country. The grave dangers this poses is illuminated not
only by the sniper case, but also the relative ease with which
criminals or terrorists in the U.S. could use lethal weapons (not necessarily those of mass
destruction) to take hostages, like in the deadly Moscow
case. Spending
hundreds of billions of dollars in military defense provides no
recourse to suicide attacks, random killings, bioterror, chemical
weapons attacks, or hostage situations within the U.S. by terrorists
who will do anything including taking their own lives, to make their
point. The recent
report of the Hart-Rudman panel is devastating since it basically
says that the U.S. is significantly unprepared for these kinds of
terrorist attacks, a year after 9/11. To quote them, "...The
survey, conducted over the past eight weeks, found that: local police
officials have limited access to intelligence reports on suspected
terrorists; only a small number of ships and containers entering
American seaports are inspected; most emergency workers are ill
equipped to handle biological and chemical attacks; and fire and
police officials in most cities do not have radios that allow them to
communicate with each other...."
Our point in highlighting this is that fixing the known loopholes
within the U.S. is much less expensive and more critical than going to
war with Iraq today. An example - something as simple as reinforcing
airplane cockpit doors prior to 9/11, when the Government knew
about numerous hijacking threats, could have helped reduce the
possibility of the devastating murders on 9/11. Another example,
relevant to the sniper case, is evident from this
MSNBC article: "...Ten full days before
the sniper attacks began in Maryland, one of the two suspects in the
case left his fingerprint on a magazine at the slaying scene in
Montgomery, Ala., police said. But investigators were unable to link
the fingerprint with a name — Malvo’s — until a month later
because of delays in processing the evidence. By that time, all 13
shootings in the Washington region had occurred. Some authorities
speculated that if Malvo had been linked to the Alabama crime before
the sniper shootings, the Caprice might have drawn more suspicion.
Detectives might have linked Malvo to Muhammad, and the car is
registered to Muhammad. But the fingerprint was sent to the Alabama
Bureau of Investigation for processing, according to federal officials
in Washington. The ABI is set up to run prints only against state
criminal records, federal officials said. The original print was not
forwarded to the FBI for comparison with federal fingerprint records,
the officials said. After the sniper connection was made, the FBI
processed the print in its Integrated Automated Fingerprint
Identification System, two officials said. The system includes
fingerprints provided by the Immigration and Naturalization Service in
deportation cases, the officials said. Malvo’s prints were filed
there. Alabama does not subscribe to the FBI fingerprint system,
which was created in 1999. Fewer than half the states have signed on
as participants, officials said [our emphasis]."
The truth is that evidence continues to mount
that terrorists and criminals within the U.S. pose greater harm in the
near-term, to the United States and its people, than Saddam
Hussein.
In the context of gun control, the fact is that some of
the NRA's most extreme positions on "gun rights" are not a
political issue - but they reflect something devoid of morality. Preserving the lives of thousands who die from gun
violence cannot possibly be less important than preserving the rights
to own weapons, which increasingly have value only against other
humans. Indeed, we don't even agree that the right to wantonly kill
animals - something euphemistically referred to as a "sport"
(hunting) - is more important than preserving the lives of animals that
Nature (or God) created. We would find it understandable if limited gun ownership
rights for self-defense continue (as long as a limited set of weapons
are defined for this purpose), but not for buying machine guns or
assault rifles!
Gun-rights advocates such as the NRA often use
the catch phrase that "guns don't kill people, people do".
We are not sure if there is a more specious argument. Of
course people are responsible for shootings, but that doesn't mean gun
manufacturers can shift their responsibility for product safety to the
buyers. Imagine if GM or Ford started saying
"cars don't cause accidents, people do". The fact
that guns are amongst the most lethal objects that are not regulated
by the consumer products safety division should be raising alarms
everywhere in this country, but they aren't. Imagine extending the
NRA's argument to more lethal weapons. For instance - would anyone
even be sane enough to let random people buy chemical weapons or biological
weapons legally under the egregious (hypothetical) argument that "chemical or
biological weapons don't kill people, people do"? We are sure
that won't happen, but this illustrates the fact that nice sounding
catch phrases don't address the problem or provide a solution.
Finally, want to know how easily kids or adults can buy guns
in your state? Click
here to get an idea. We will return to this topic in the near
future, with some data. 10/21/02 <link>
Death
penalty for juveniles
Having made a landmark
judgment earlier this year that the death penalty for mentally
retarded individuals is "cruel and unusual" and thus
unconstitutional, a strongly divided Supreme Court unfortunately
declined to
hear an appeal on a death penalty case for an individual who was 17
years old when he committed a heinous rape/murder. This essentially
means that the legality of executions of 16 or 17 year olds is
preserved in those states that allow it, without further debate.
In the U.S., adults are considered to be those who are 18 years or
older. Does this mean someone who is 16 or 17 years old is
ignorant of the consequences of his or her actions. Of course not. So,
in principle, as long as
convictions show that the act was heinous, that the individual knew
what he or she was doing, and proved beyond any doubt that the
person convicted was really the killer, one might argue for the death
penalty in those cases.
However, the fact of the matter is that individuals under the age
of 18 are NOT legally considered adults, even though they may
*BE* adults in every sense of the word. On the one hand we deny
individuals who are 16 and 17 the acknowledgement that they may be as
thoughtful and mature as legal adults. We also deny them rights that
legal adults possess (e.g., voting, drinking, etc.). This then raises
the question as to whether it is not hypocrisy to conveniently subject
16 or 17 years old to laws and penalties that one should be applying
to adults?
To be continued...!
10/16/02 <link>
Foetus has self-defense rights but mother has abortion rights?
Adam Liptak reports on a rather interesting case that is sure to
rattle abortion rights supporters. A unanimous 3-judge Michigan
Appeals Court has ruled that Jaclyn Kurr, 16-17 weeks pregnant with
quadruplets, had the right to use deadly force against her
lover/attacker (to the point of killing him) even though the latter
did not attempt to kill her but actually punched her in the stomach.
The Court simultaneously noted that the age of the foetuses clearly prevented them from being able to survive outside the
womb and that, therefore, she could legally have aborted the foetuses
consistent with Roe v.
Wade!
Liptak also reports that "...about half the
states have laws making assaults that cause miscarriages or
stillbirths criminal...Michigan
law allows people to use deadly force to defend themselves when they
believe their lives are in danger or when they feel threatened by
serious bodily harm. Ms. Kurr failed to persuade the jury that the
punches amounted to either. The law there allows the use of deadly
force in defense of others. The [initial] trial judge ruled that the
fetuses Ms. Kurr was carrying were not "others" for these
purposes. 'I believe in order to be able to assert a defense of others
there has to be a living human being existing independent of your
client,' Judge Richard Lyon Lamb of the Kalamazoo County Circuit
Court, said to Ms. Kurr's lawyer. 'Under 22 weeks, there are no
others.'...[However,] In
reversing the conviction, the appeals court held that the concept of
defending others 'should also extend to the protection of a fetus,
viable or nonviable, from an assault against the mother.' The court
stressed that it recognized the defense only in the context of an assault
[our emphasis], thus excluding the destruction of embryos existing
outside the body and medical abortions..."
One of the questions this decision
raises then, is how one defines assault. Isn't it a very thin line
between "using an intrusive and painful medical procedure for
abortion" and calling it an "assault on the foetus"? If
we say that a person has the legal right to abort a foetus while
simultaneously saying the foetus is an "other" that has a
legal right against being destroyed by an "assault", then it
seems we should definitely expect a lot more assaults on Roe v.
Wade. More on this intriguing case later.
10/7/02 <link>
Assisted Suicide and Euthanasia (Mercy-killing)
We have just learned that the U.S. Supreme Court refused
to hear the highly publicized case of Jack Kevorkian, convicted in
Michigan of second-degree murder for the mercy-killing of a patient
suffering from Lou-Gehrig's disease. While this is a topic of extreme
importance, we suspect that the high court's turning it down may
partly spur the need for greater discussion and create more mature
laws that might have more legal standing in the long run. In this
context, some of us may also recall the unsuccessful efforts (so far) of
Attorney General Ashcroft to try and overturn the state of Oregon's
unique (in the nation) Physician-Assisted Suicide Law - called the
"Death with Dignity Act". Back in April 2002, a Federal
Judge dismissed
Ashcroft's lawsuit. It would be surprising if Ashcroft did not
fight this at the U.S. Supreme Court.
Assisted Suicide (performed by doctors or patients upon the
request of patients) and Euthanasia (mercy killing performed by
doctors but not necessarily with the patient's consent) are intense topics on which significant open-minded debate needs
to occur. On the one hand, any pertinent laws on these issues *cannot* simply be determined by public opinion since death is after
all as personal an experience as life. However, without public
support, such laws would obviously have no chance of passing. (It must be noted
that while the most recent evidence we have seen to-date (1999
Gallup Poll) indicates that a majority of the U.S. public supports
assisted-suicide, we believe a lot more data needs to be collected on
this controversial topic, with detailed questions, to realize any
value from such polls).
While we are inclined to think that a person should have the right to
end one's life to avoid immense pain and suffering, we do believe that
some of the ramifications of allowing this legally should be
considered very carefully to avoid intentional or unintentional abuse.
Indeed, the risk of overuse or incorrect use of Assisted Suicide or
Euthanasia laws makes us extremely nervous, especially in light of the
recent research
findings that nearly 90% of patients who ask for assisted suicide, may
actually change their minds later on! More on this topic later.
10/6/02 <link>
More on the Death Penalty, this time from Illinois
Republican Illinois Gov. George Ryan (who some of you may recall declared
a moratorium on the death penalty back in Jan 2000) has started
holding mass clemency hearings for death penalty convicts. This is
sure to spark even more serious debate and anger on this topic. This
comes on the heels of recent Federal Court judgments
declaring the death penalty constitutional. (As an aside, ever
wonder how the GOP's right-wing would have reacted if a Democratic Gov. did this?)
In general, we are in favor of the death penalty, not the least
because we find no compelling reason to provide our tax dollars to
keep heinous criminals alive and well. But, we are more than
willing to concede that the death penalty statute requires serious review to
determine how to avoid sending innocent people to their deaths. Also
important is to make sure that laws governing death penalty decisions
are objective and uniformly applied. Gov. Ryan may potentially leave a
worthy legacy on this specific issue, because he is not necessarily
calling for a ban on it altogether, but rather a reform
of the laws. In that sense we support his effort, regardless of the
transient pain and hurt experienced by the friends and relatives of
those murdered. Let's get this right, to ensure the punishment is
always just.
9/30/02 <link>
More on gun laws - this time from our favorite state CA
This is an interesting, different twist to the Second
Amendment right to bear arms (see our earlier note on this below).
The lawsuit here relates to a letter from the ATF to Taurus
International Manufacturing (maker of guns) which said, among other
things, "If your corporation determines
that there is an unusually high number of Taurus firearms being traced
to certain [wholesalers and dealers], we suggest that you look at
their business practices more carefully." Taurus
apparently never bothered to do much with this. As the NYT article
states, "...Studies
by the firearms bureau have shown that about 1 percent of dealers
account for about half of all guns used in crimes, meaning that a few
dealers appear to be responsible for selling thousands of guns to
criminals..." The catch of course is that what Taurus
has done (or not done) is not overtly illegal. The CA cities suing
the gun manufacturer are relying on past history relating to cases
involving toxic chemicals, to try and extend that to gun
manufacturers. As the Times states, "...federal
courts have ruled that when a manufacturer of a dangerous product
knows that its sellers are engaged in hazardous practices, the
manufacturer may be held liable. For example, makers of toxic
chemicals have been held liable for selling barrels of their products
to companies they knew were not doing enough to prevent leakage into
the ground. The cities also say
they believe the gun makers could use information from the firearms
bureau's [ATF's] tracing of guns used in crimes to identify dealers
who sell a disproportionate number of those guns, and stop selling to
them." We will certainly
watch this lawsuit with interest. (This reminds us of a past Law and
Order episode which we thoroughly enjoyed.)
9/28/02 <link>
Executive Privilege or Desire to hide unpleasant
facts?
Vice-President Dick Cheney provokes
a legal war between the Executive and Legislative branches, for
the first time in the 81-year history of the General Accounting Office
of the U.S. Congress. Mr. Cheney invokes
Executive Privilege over his decision to hide from public view the
identities of those energy executives who wrote his Energy Policy for
him. The ruling is expected from a Republican-appointed Federal judge
sometime soon - so we're not inclined to hold our breath very much. On
the other hand, we believe the judge (and the Supreme Court - if the
case made it up to there) would be making a big mistake by
awarding Executive Privilege on this case. If the judges are smart enough
they will recognize that a Government unfavorable to their political
leanings may put forward similar arguments in the future (on obviously
privilege-less issues such as this one), and their decision today
will have far-flung repercussions for Government and Democracy in
general. (Just imagine what would have happened, if a future Bill
Clinton invoked Executive Privilege on everything and got away with
it.) 9/27/02
<link>
Second
Amendment: Right to Bear Arms - for militia or individuals?
Dahlia Lathwick writes in Slate about the attempt
by Attorney General John Ashcroft to try and rewrite decades of legal
precedent by trying to reinterpret the Second Amendment to allow
individuals to bear arms, with the caveat of
"reasonable regulation" attached. As an example, she cites a
recent Texas case U.S.
v. Emerson, where the 5th Circuit Court of Appeals decided to
reinterpret the law in like fashion (overturning the precedent
originally set by the Supreme
Court ruling in U.S. v. Miller), while holding on to the gun
regulation imposed on the defendant Emerson due to the facts of this
particular case. What is interesting is that Ashcroft's Justice
Department, in Emerson's appeal to the Supreme Court, has reversed the
stand the previous Justice Department took in the same case, by filing
a brief supporting the individual's right to bear arms, while
continuing to maintain that in this particular case the defendant is
subject to the "reasonable regulation" caveat! The
inconsistency of this position is mind-boggling. (Unfortunately, as
Lathwick points out, the Supreme Court refused to hear this case,
keeping this highly critical law in legal limbo). It
is difficult to understand how the Bush administration
and Attorney General Ashcroft could possibly be pushing this view
of the Second Amendment at a time when curbing weapons access to
terrorists should be their foremost effort. As Lathwick points out,
defendants have gleefully attached motions on gun-possession cases
citing this new interpretation of the law by the same organization
that should be fighting them. And Mr. Ashcroft is continuing to attach the legally
weak "reasonable regulation" caveat
to his new interpretation of the Second Amendment. Incidentally, Lathwick points out,
"...For instance, last fall, Ashcroft blocked the FBI from using gun purchase records gathered under
the auspices of the federal Brady Act to determine if any of the 1,200
suspected terrorists detained after Sept. 11 had purchased a gun. This
is the man who didn’t hesitate to lock these same people up for
months without charges, insisting that looking into their gun records
violated their privacy...." This is to be juxtaposed with
Mr. Ashcroft's promise at his confirmation hearings, "...being
attorney general means advancing the national interest, not advocating
my personal interest."
9/24/02 <link>
The death penalty
Another
Federal judge declares the death penalty unconstitutional. Again, a decision based on the findings of many innocents being put to
death
9/17/02 <link>
First Amendment:
Free-speech or Terrorism? - books teaching chemical and biological weapon
production
In a brief
op-ed, Nicholas Kristof highlights this menace and the
legal/philosophical questions surrounding free speech. Free speech is
nice and great, but distributing manuals for making weapons of mass
destruction freely is no joke and should NOT be protected under
"free speech"! It's more like free terrorism! Pornography is
far less a problem for our society (when was the last time it killed
thousands at a time?) and THAT is more controlled.
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