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Monday :: December 26, 2005

Monday Open Thread

It's Colorado's warmest holiday on record and not a day to spend inside. For anyone wanting a place to chat, this space is for you.

If you're looking for something new to read, check out the 2005 Blawg Review Awards for the best law blogs. Sentencing Law and Policy wins best blog by a law professor, Scotus Blog is named best blog by a law firm; Howard Bashman of How Appealing is the blog for legal breaking news; I get an Award of Merit for TalkLeft. There's many, many more.

The awards were judged by Themis, and the accompanying artwork of She-Hulk by Greg Horn depicting Lady Justice is very cool.

Federal Judges Blast Immigration Court Decisions

Biased. Incoherent. Below the minimum standards of justice.

Those are some of the harsh words federal appeals courts judges are using to describe the decisions of immigration judges in asylum and related cases.

The Times says part of the problem is the increase in immigration cases lodged in federal appeals courts since former Attorney General John Ashcroft issued new guidelines in 2002 that limited immigration courts' abilities to hear appeals.

In the courts in New York and California, nearly 40 percent of federal appeals involved immigration cases.

White House Pressed WaPo Not to Run Articles

Last week, Newsweek's Jonathan Alter revealed that the White House leaned on the New York Times not to run its article on warrantless surveillance by the National Security Agency. The Times sat on the story for a year. Alter says,

We’re seeing clearly now that Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War.

Howard Kurtz reports in today's Washington Post that White House officials, including John Negroponte and Porter Goss, met with Executive Publisher Leonard Downie and made a similar request over Dana Priest's article on secret CIA prisons. While Leonard Downie won't confirm the meetings, other sources do:

Christmas Traffic is a Gift

Here's a little song you can all join in on. Jane at Firedoglake reminds bloggers to give the gift of Christmas traffic: Click through each link and spread some blogger joy.

  • Skippy writes a song, Blue Xanax
  • Digby writes about the radioactive Muslims
  • War and Piece gives no holiday break to the White House
  • World O' Crap says Santa was a cokehead.
  • Vodkapundit has an awesome picture of Colorado today.
  • Athenae's ferrets are the best.
  • Mike Ditto has some advice for the Harlem Choir, which is getting kicked out of its rehearsal space
  • Heretik has moved, update your bookmarks.
  • Public Defender Dude says Death Row Defender is worth reading. Law and Order, watch out.

Now I'm going to download Dear Mr. Fantasy, Paper Sun and the Low Spark of High Heeled Boys. We've made it through another Christmas. On to New Years.

Sunday :: December 25, 2005

Alito's Threat to the Balance of Power

The New York Times opines that Judge Sam Alito has an excessive zeal for presidential power.

[His] memos are part of a broader pattern of elevating the presidency above the other branches of government. In his judicial opinions, Judge Alito has shown a lack of respect for Congressional power - notably when he voted to strike down Congress's ban on machine guns as exceeding its constitutional authority. He has taken a cramped view of the Fourth Amendment and other constitutional provisions that limit executive power.

The Times urges Senators to ensure that Alito is on the side of the Constitution, not the President. Senator Leahy issued this statement Friday alerting Judge Alito that he would be questioned closely on his views about presidential power and checks and balances.

John Yoo: Why the President Can Order Snooping and Torture

John Yoo is the Berkeley law professor, former associate White House counsel and former law clerk to Clarence Thomas, who is responsible for the most extreme White House positions on torture and snooping:

  • It was Yoo who drafted the infamous memo saying the Geneva Conventions were "seriously flawed" and the U.S. wasn't bound by them in treating al Qaeda prisoners.
  • It was Yoo who drafted the memo with this definition of torture:

...it declared that, to be considered torture, techniques must produce lasting psychological damage or suffering "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

  • It was Yoo who said the President was not bound by FISA or federal eavesdropping laws when conducting electronic surveillance when one party was outside the United States. Yoo believes in wartime, the constitution gives the president unlimited power.

You can read his January 9 memo to William Haynes here. (pdf)

How did this 38 year old uber-conservative who has never met Bush or Cheney get to dictate our policy on torture and the war on terror? Mostly, it was fortuitous timing. The timing of the 9/11 attacks.

Bush's Stingy Exercise of Pardon Power

As former U.S. Pardon Attorney Margy Love says over at White Collar Crime Blog.

He has pardoned only 69 people in five years, about 7% of pardon applications acted on during this period, an absolute number and rate that is lower than any president in the past 100 years. It is curious to me (though not surprising) that elsewhere he presses the outer limits of constitutional powers that most regard as shared with the other branches, while appearing quite timid and uninspired where it comes to exercising the one power that is truly totally his own.

Love also notes that federal pardons are the only way to get rid of a federal criminal record. There is no expungement, and no administrative procedure for restoration of rights.

Because there is no other way under federal law that a person can avoid or mitigate the collateral consequences of conviction, federal offenders remain forever barred from many jobs and benefits and even civil rights, because of their conviction. I am not a particular fan of guns, but many would-be hunters remain permanently saddled with a disability that has absolutely nothing to do with their offense of conviction. Why should someone who cheated on their taxes not be able to shoot skeet?

Love characterizes Bush's use of his pardon power as "doing just enough to avoid being labeled stingy." I call it grinch-like.

Enron Defendant Rick Causey in Last Minute Plea Talks

Ken Lay, Jeff Skilling and Rick Causey are set for trial in the Enron case on January 17. Word is that Rick Causey is in plea negotiations and may cooperate against Lay and Skilling.

Either the report is not true, or Lay and Skilling's lawyers are in serious denial:

"I've talked to Rick Causey myself, and I don't believe he willfully did anything wrong," said Mike Ramsey, lead attorney for Lay. "I don't believe he would agree to plead guilty to a crime when he didn't commit one."

Skilling attorney Daniel Petrocelli also cast doubt on a Causey plea. "Over the past year, I've spent a lot of time with Rick Causey. He is an honest man and consummate professional, who worked his heart out for Enron," Petrocelli said. "He never — let me repeat — never committed any fraud or criminal conduct of any kind. He knows it, and the government knows it."

Defense Bill Wipes Out Most Habeas for Detainees

A few weeks ago I wrote that John McCain's torture amendment, included in the defense authorization bill passed by Congress, would be severely undercut by the Levin-Graham-Kyl amendment, which grants a license to use coercive techniques, particularly on detainees at Guantanamo, by denying them access to the courts to seek redress. In other words, the McCain Amendment says one thing and the Levin-Graham-Kyl Amendment another.

The Washington Post today has more:

...the measure awaiting President Bush's signature also would limit the access of detainees held at the U.S. prison at Guantanamo Bay, Cuba, to federal courts. And it would allow the military to use confessions elicited by torture when deciding whether a detainee is an enemy combatant.