not guilty

The case that I blogged about a while ago finally went to a jury trial today. Luckily (?) our Armenian friend lost her job so the court did end up appointing an attorney. More importantly, the court appointed attorney did a great job. Sarah was nervous but she did really well. Only one of the witnesses for the prosecution showed up. Chalk one up for the justice system.

Good to note the positive examples, especially when you hear some of the worst negative examples.

ongoing attempts to defy the 'unitary executive'

This article is worth reading if you haven't.

On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.

Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance.

The story of how Al-Haramain's lawyers negotiated the journey thus far to Judge Walker's ruling -- a team of seven lawyers that includes me -- sheds light on how much is at stake for the Bush administration and the country. It is a surreal saga, involving a top-secret document accidentally released by the government, a showdown between Bush lawyers and a federal judge, the violent destruction of a laptop computer by government agents, and possibly even the top-secret shredding of a banana peel.
...
Our proof is a top-secret classified document, which the government accidentally gave to Al-Haramain's lawyers in August of 2004. We call it "the Document." It appeared in a stack of unclassified materials that the lawyers had requested from OFAC. Six weeks later, after the government realized its blunder, FBI agents personally visited each of the lawyers and made them return their copies of the Document. But the agents made no effort to retrieve copies that the lawyers had given to two members of Al-Haramain's board of directors, who lived outside the United States.

I can't publicly reveal what's in the Document because, well, it's a secret. I would be committing a crime -- a violation of the Espionage Act of 1917 -- if I were to do so. But we assert the Document as proof of allegations we have made that in March and April of 2004 the National Security Agency conducted warrantless electronic surveillance of attorney-client communications between a representative of Al-Haramain and two of its attorneys, and that in May of 2004 the NSA gave logs of those surveilled communications to OFAC.

Suing George W. Bush: A bizarre and troubling tale

in praise of the 5th amendment

I told a friend of mine about the legal troubles our other friend is having and he passed along this video. The guy talks a little fast but makes some good points.

Part 2

morning at the courthouse

I spent the morning down at the courthouse. A friend of ours has been accused of a hit and run although she neither hit nor ran. Our friend is an Armenian immigrant with a work visa. Sarah was with her in the car when the supposed accident occurred. Today was the arraignment hearing.

When the case actually goes to trial or pre-trail I think it will be dismissed but there isn't much of a context to get that sort of dismissal at an arraignment hearing. The judge won't look specifically at evidence to keep himself from being influenced if he has to be the judge who presides over the case.

Anyhow, I've never been to an arraignment hearing. It's a pretty educational experience. Defendants plead guilty, not-guilty or no contest and are usually offered a plea bargain. Violations ranged from alcohol/drug violations to traffic violations (street racing in one case) to petty theft. There was a (much needed) Spanish/English translator but unfortunately for us, no Armenian/English translator.

The pre-trial hearing is scheduled for August 19. Our friend makes too much money ($10/hr) to be provided a public defender so we walked over and asked for discovery from the prosecutor's office. She'll probably be defending herself but there are a number of places to get free legal advice we'll check out.

McCain's soulless posturing on Guantanamo

George Will takes on McCain's problematic posturing on the recent Supreme Court decision.

The day after the Supreme Court ruled that detainees imprisoned at Guantanamo are entitled to seek habeas corpus hearings, John McCain called it "one of the worst decisions in the history of this country." Well.

Does it rank with Dred Scott v. Sanford (1857), which concocted a constitutional right, unmentioned in the document, to own slaves and held that black people have no rights that white people are bound to respect? With Plessy v. Ferguson (1896), which affirmed the constitutionality of legally enforced racial segregation? With Korematsu v. United States (1944), which affirmed the wartime right to sweep American citizens of Japanese ancestry into concentration camps?

Did McCain's extravagant condemnation of the court's habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court -- meaning, which candidate would select the best judicial nominees -- a campaign issue.

Further evidence that the "culture war" is about facts and not so much about values (schneier.com). This breaks down (of course) because it ends up being about values related to facts (usually implicit, rarely do people explicitly deny the value of scientific method, for instance).

habeas corpus and James Yee

Good news yesterday that the Supreme Court restored habeas corpus. From Glenn Greenwald

As a result, Guantanamo detainees accused of being "enemy combatants" have the right to challenge the validity of their detention in a full-fledged U.S. federal court proceeding. The ruling today is the first time in U.S. history that the Court has ruled that detainees held by the U.S. Government in a place where the U.S. does not exercise formal sovereignty (Cuba technically is sovereign over Guantanamo) are nonetheless entitled to the Constitutional guarantee of habeas corpus whenever they are held in a place where the U.S. exercises effective control.

This is great news but it's still disconcerting that this decision was 5-4. These measures are more troubling to me because I've heard, from a lot of people who have a lot to lose (Col. Morris Davis, James Yee, numerous people who were formerly part of the GWB administration), that the majority of the decisions being made with these newly granted powers are politically and not strategically motivated. We know the "war on terror" is a lot of hand waving but even those who believe strongly in using every means possible to go after terrorists are terribly concerned when they come into contact with the specifics of what's being done. Perhaps the GWB administration is doing us a favor by showing how these reversals of long standing principles can go so terribly wrong so quickly. I just hope we have the presence of mind to overturn these things once we get a new administration.

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The Hinckley Institute of Politics got the audio of James Yee's talk up on KRCL's audio archive a week or two ago. James Yee is the former army chaplain at Guantanamo who was himself detained and underwent sensory deprivation.

Yee also made it clear that he didn't think the facilities in Guantanamo were going anywhere, no matter who becomes the next president. This is James Yee's last statement before he asked for questions. He was showing slides of some of the things he'd been describing. I suck at transcribing.

"New dental chair, surgical equipment in which prisoners, uh supposedly, according to Michael Moore in his last movie "Sicko". The prisoners supposedly get better treatment than our U.S. service personnel. But I don't think that's the case. Because there are also force feeding chairs in which prisoners who are on hunger strike who deteriorate to less than 80 pounds are force fed through the nose after being strapped into these chairs. Because the mission in Guantanamo is to preserve life, so prisoners who go on hunger strike are not allowed to die. they're forced-fed a tube is lubed with petroleum jelly, like vasoline, shoved down the nose, that prisoner is then fed with a liquid diet. A torturous process that stopped a hunger strike of 130 prisoners down to 4 within two days. After being strapped in these chairs, they stopped their hunger strike."

The full audio (audio.kuer.org). Hearing mild mannered Yee talk in person, with lawyers and a few military personnel (they came to the talk) was more persuasive to me than all the other stuff I had read on the internet. For people who spend way too much time on the net (like me) it's good to remember that in person interaction has its own, unique benefits.

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What I really think the US should be doing with all the resources wasted on the TSA, Homeland Security and the "war on terror" is to track down and monitor every nuclear weapon (oh yeah, something like that would require diplomacy, a word GWB can't even pronounce correctly). Of course we want some safety in our cities but do we really need these sorts of bungling bureaucratizes on high?

It's been a terrible eight years. I'll go back to watching the clock tick, tick, tick until January.

the farce of digital copyright

John Tehranian, a law professor at the University of Utah, recently calculated that a typical American, in the course of a single day and without any use of file-sharing programs, could easily expose himself to over twelve million dollars in statutory damages should every copyright holder who’s rights he violated decide to sue. He did this by looking to a hypothetical law professor, checking and responding to email, forwarding digital pictures of a vacation, and many other innocuous activities every one of us with a digital lifestyle engages in nearly every day. While some have disputed the specifics of his accounting, the simple fact remains that “such an outcome flies in the face of our basic sense of justice.” This digital lifestyle, which allows us to connect and share in ways unimaginable only a generation ago, should not be at odds with our system of laws. The latter ought to embrace the former, not hold it forth as prey for litigious businesses and special interests, and outmoded conceptions of property. [essay]

I'm not sure this is the best treatment of this issue, Larry Lessig has dealt with it at length but it is an issue worth understanding.

When any part of everyday living is technically illegal, the only difference between a good citizen and a criminal is who is willing and able to prosecute. The legal system becomes a very ugly tool (not that it wasn't already a bit ugly).

Our president is no longer subject to the rule of law (or any sort of check), how many more abuses can our legal system handle?

I know, I know, the superheros will save us.