Right Juris

USS Cole

Today prosecutors of the U.S. military have indicted and charged Abd al-Rahim al-Nashiri, a Saudi national who is charged with planning the attack on the USS Cole. Al-Nashiri is currently being held at the military installation in Guantanamo Bay. The good news is that 5 of the 8 charges he is being held on carry the death penalty, so hopefully we can speed him on his way to his 72 virgins.

What is going to be interesting in this case (and it may explain why it has taken so long to go to trial) is what kinds of evidence the government is going to be able to use agains al-Nashiri and what will be admissible. The CIA has admitted to using waterboarding against the defendant and he claims that he was tortured himself. In the bigger sense, will a military tribunal even allow the 4th and 5th amendment as protections against al-Nashiri. There is a valid argument that he is not protected by those provisions of the Constitution. If he is, one would wonder how much of his confessions will be admissible, if any. This should be an interesting trial to keep an eye on.

Recently the Supreme Court announced in a 5-4 decision (usual suspects) that executing convicted child rapists ran afoul of the 8th Amendment of the United States Constitution. While the decision was almost laughable in its argumentation, one thing that is clear is that the court has taken a very liberal view as to what equates “cruel and unusual” under the 8th Amendment.

In the wake of this decision, Bobby Jindal, the governor of Louisiana, announced legislation that would lead to both physical or chemical castration of convicted child rapists. The new legislation makes this punishment possible upon the first conviction, and if you are convicted a second time mandatory. Personally, I like the idea (I think death is too good for these scum). However, I’m not sure if a law like this will pass Constitutional muster. The big problem in predicting Constitutional consequences is that the 8th Amendment is murky at best. I used to practice Constitutional law, specifically I defended doctors and nurses from prisoner claims of 8th Amendment violations for with-holding medical care. The Constitutional standard for this was somewhat vague and the case law not exactly exhaustive. When it comes to issues like chemical castration, there is no standard at all.

So, what is the outcome of these laws? Well, first of all I think we’re more likely to see more and more of these laws starting to pop up. This might say something to Justice Kennedy about his knowledge of “community standards.” I think that chemical castration has a higher likelihood of surviving a Constitutional challenge in comparison to physical castration. One important question here is if we would consider castration as “punishment” at all. One argument is that castration is not punishment so much as it is medical treatment. Pedophiles are often not able to resist the impulse to do what they do to these children, so by “treating” the impulse with chemical castration we are not punishing offenders as much as we are preventing future attacks and treating a medical condition. I don’t know if this argument works or not, but possibly.

Once again we see the importance of this current election. Whoever is elected is likely to nominate at least one, if not two justices and those justices will be the ones who will decide if castration is indeed Constitutional or not.

Gun owners and Second-Amendment Rights activists are celebrating the ruling today by the US Supreme Court which threw out the DC gun ban as unconstitutional.

In District of Columbia v. Heller, the Court found in favor of “Dick Heller who is a D. C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns,” among other requirements, including trigger locks. The DC District Court found in favor of the city, and the DC Appeals Court reversed, and found in favor of Heller. SCOTUS affirmed the Appellate decision.

In a 5-4 decision against the ban, Justice Antonin Scalia wrote for the majority:

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security and where gun violence is a serious problem, … That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct.

The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, … But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.

The Court did not address the issue of licensing of guns and allowed that part of the law to stand. However, incredibly, the trigger lock requirement was found to be unconsitutional if the gun is to be used for self defense. Hand gun bans were also found to be unconstitutional since a whole class of weapons that could be used for self defense were banned. “Unusual” and particularly dangerous weapons (I assume, such as assault rifles, and so forth) can still be banned, as can ownership by felons and mentally incapable persons.

In answer to the issue of individual protection, Scalia wrote that during the early days of our nation,

Americans understood the “right of self-preservation” as permitting a citizen to“repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”

He also went on to detail how the founding fathers wanted to prevent the government from disraming its citizens and to be able to raise armies with political (instead of national) allegiance.

Justice Stevens wrote the rather long-winded dissent, which was longer than the ruling itself. He said in part,

The Second Amendment was adopted to protect theright of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

Even though Justice Stevens denied it in the first paragraph of his dissent, much of his position rests in Steven’s view that the “militia” wording of the Second Amendment equated to a state militia, and not to individual gun ownership for personal protection.

The Suprme Court has tread very carefully around this issue for years. It is good to see such a strongly worded-decision, although I am sure, many challenges and questions have been raised in this rather long decision.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined.

STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

Seattle, must be looking very carefully at this ruling right now.

Justice Kennedy wrote in a decision joined by the other 4 liberal Justices that executing child rapists violates the Constitutional ban on cruel and unusual punishment. In a 5-4 decision, the lives of Patrick Kennedy, who raped his 8-year-old stepdaughter and another rapist, also in Louisiana, who have been condemned to death for a rape that were not accompanied by a killing, have been spared.

The Supreme Court previously banned executions for rape in 1977 in a case in which the victim was an adult woman.

“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony Kennedy wrote.

J. Kennedy further wrote:

Rape’s permanent and devastating impacton a child suggests moral grounds for questioning a rule barring capital punishment simply because the crime did not result in the victim’s
death, but it does not follow that death is a proportionate penalty for child rape. The constitutional prohibition against excessiveor cruel and unusual punishments mandates that punishment “be exercised within the limits of civilized standards.” Trop, 356 U. S., at 99–100. Evolving standards of decency counsel the Court to be most hesitant before allowing extension of the death penalty, especiallywhere no life was taken in the commission of the crime. See, e.g., Coker, 433 U. S., at 597–598; Enmund, 458 U. S., at 797. Consistent with those evolving standards and the teachings of its precedents, the Court concludes that there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but “in terms of moral depravity and of the injury to the person and to the public,” they cannot compare to murder in their “severity and irrevocability.”

In the dissent, the four conservatives joined the dissent, written by Justice Alito, which stated in part,

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penaltyfor the crime of raping a child. This is so, according to theCourt, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic thecrime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court providestwo reasons for this sweeping conclusion: First, the Courtclaims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child;second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “‘the evolving standards of decency that mark the progress of a maturing society.’” Ante, at 8, 15, 16 (citation omitted). Because neither of these justifications is sound, I respectfully dissent.

I have to agree that while looking through the decision, I was looking for something of substance to justify the majority decision, like Federal legislation, not the state legislations that the Court relied upon, but I just could not find it. As Alito pointed out, the reason given by the majority, “independent judgement” of the Justices and “national consensus” appear to be reasons looking for a cause. For the Court to slam the door with no opening for the particularly heinous cases referred to by Justice Alito seems to be outside where the Court should be. This is clearly a case of the Supreme Court making law.

This ruling also points to one of the major divisions in the legal world - strict constructionists, who believe the law is what it says, and those who believe the law is “fluid” and always subject to modern interpretation.

I do not know if Capital Punishment even works as a deterrent, but it sure would be nice for prosecution of would-be serial molesters who now know that as long as they don’t physically kill the victim (later suicides of the victims don’t count, I guess), they can serve 10 years or so and walk.

Once again, the liberals come down in favor of no responsibility to be shouldered by perpetrators of violent crimes.

A trial of two British men accused of killing a businessman. Witnesses were allowed to testify behind a screen and with their voices altered. The House of Lords (which is not only a legislative body, but also the Supreme Court) recently ruled that such tesitmony does not allow the accused to confront their accuser. In the US, our laws are HUGELY based on British law, and in fact there is still Kings laws which are controlling to this day in our land. We also have the consittution, which states that the accuser must be confronted by the accused.

The Sixth Amendment to the US Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Our Supreme Court has made the same determination as the House of Lords. In a decision written by Justice Scalia, he wrote that the Sixth Amendment requires a face-to-face confrontation. Testimony at trial in which a large screen had been placed between a defendant charged with child molestatio and the child who was accusing him violated the defendant’s rights to confront the accuser. Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). There have been several rather consistence rulings by the Supreme Court, many of them written by Scalia which affirms his views on the subject.

Our British friends are now facing hundreds of cases in terrorism, gang violence and organized crime which are on hold until they figure out what to do. It is estimated that up to 40% of pending cases may have to be suspended because of the ruling.

The same thing happened in this country in the wake of Coy and other rulings and the impact is still being wrestled with in courts throughout the land. The impact is present in the legal fate of the Guantanamo inmates. If they are brought to trial, all those secret operatives and their techniques will be brought into the court room for the defendant and the world to see.

The question is, can our justice system still operate in the face of nationaless world-wide terrorist organizations? The near shut-down of the New York City Gambino family and others shows that it can work. However, we don’t want to be in the position where the rights guaranteed to our citizens are used by foreign terrorists to ulitmately destroy us by our own justice system.

Anyone for a game of thermo-nuclear war?

Sorry, I couldn’t resist, but this story reminded me of the movie Wargames a lot. If you are not familiar with the plot of one of the best 80’s movies ever, basically a kid who is a computer hacker genius accidentally sets off a nuclear showdown with the Soviet Union (darn I miss those guys), but of course saves the day in the end. One of the way he impresses the would-be girlfriend in the flick is by hacking into the school computer system and changing her grade from a D to an A. Unfortunately, Omar Khan will not be so lucky.

According to the Times, Mr. Khan broke into the computer system of his prestigious high school and changed all his grades from an F to an A. Dude, at least change them to a C or something, you reached to far! Khan is now charged with 69 counts including theft, stealing public records, computer fraud, etc. How likely is he to be sentenced to 38 years? I’m guessing not very likely, especially considering how crowded California jails are. I do think that officials should take this very seriously though. You never know, he might have started another thermo-nuclear war!

Well, thank goodness, I was worried about that. The Indiana Supreme Court ruled last week that it is okay to beat your kids. This case involved a mother who whipped her 11 year old kid with an extension cord (my mom used to use hot wheel tracks, ouch!). She was then found guilty of battery at trial. Apparently, as long as the harm isn’t serious or permanent (what about the psychological harm?) its okay to beat your kids.

Basically the Court relies on a reasonable standard when it comes to kid beating. If the beating was reasonable under the circumstances, and not too out of hand, its okay. Well, that sounds specific enough.

I’m of mixed feelings when it comes to corporal punishment. First, I’m totally against it in the schools. I got the paddle several times as a youngster by the principal (sorry, I had to flip him off, he was an arse), so I’ve never been big on that. I have three daughters, and no one is going to lay a hand on them except me or my wife. When it comes to parental discipline, this is a bit tougher. I tend to side with the wishy-washy psychologists on this one. Hitting your kids, especially in anger, teaches them only one thing, when your mad physical violence is okay. So, as a rule I do not spank my kids, because in my experience it only teaches them to hit their sisters or friends when they are mad or upset. We use the Dr. Phil methods of parenting and so far so good. With that said, there are no standards of good parenting and plenty of people believe that spanking your kids is a perfectly legitimate way of disciplining them. I don’t want to be the person telling them they are wrong, even if I think they are. I don’t think it does any permanent harm to the children (well, I still have flashbacks about the hotwheel tracks), so I guess its all right. In any event, I’m glad Indiana has stood up for the rights of parents, in the long run that is what we need more of.

Prof. John Yoo has a great piece in the Wall Street Journal today regarding the recent Gitmo decision. It is a remarkably well written criticism of the Boumediene decision. As I have argued previously, the Congress is given textually committed authority to define the jurisdiction of the Supreme Court. Yoo notes:

The Boumediene five also ignored the Constitution’s structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions. Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.

What is particularly interesting (or frightening) is that the Court, like I’ve never seen before, has decided to intrude into a war making powers of the President and Congress. They are essentially turning the art of war-making into the criminal process. Are we going to require our troops to read Miranda Rights to suspected terrorists? Will probable cause be required before we can detain a terrorist? The inherent problem here is that it is simply impossible for our military to conduct a war while at the same time having to worry about niceties such as constitutional rights. I have a feeling that the “take no prisoners” order may become a standard one. If in doubt, kill em. At least this way we don’t have to worry about terrorists showing up 6 months after we release them from Gitmo as terrorists in Iraq (yes this has happened).

What liberals have to understand is that the pre-9/11 anti-terrorism tactics just will not work. The Constitution was designed to protect the citizens of the United States, not to protect those who are out to kill us. I am not arguing we shouldn’t treat the prisoners with dignity, and we shouldn’t detain those whom we have no proof of a terrorist connection. Those are basic human dignities that everyone is entitled too. Those rights, however, are already protected through the tribunal system currently in place. The Court has created a more onerous burden for our government, our soldiers and in the long run they will make our country and the world a less safe place.

This weekend has seen a firestorm of bipartisan blogger boycott of all AP stories due to a report they the AP was threatening legal action against the Drudge Retort if they did not remove 7 items on their site that contained quotations of 39-79 words. According to the New York Times,

the news association convened a meeting of its executives at which it decided to suspend its efforts to challenge blogs until it creates a more thoughtful standard. “We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.

however;

Mr. Kennedy said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.

In other words, nothing has or is likely to change at all. The AP claims that the “spirit” of the Internet is to “summarize” articles and link to them, not directly quote them. Of course this is a whole cloth fabrication. If anything, the spirit of the Internet is probably closer to direct plagiarism, but on the legal side of things direct quotes from articles and books is consistent with regular blogger practices. The crux of this problem comes down to the theory of Fair Use. The A.P. wants to craft a policy that delineates what Fair Use is and how bloggers may use their source materials. The only problem with this is that the A.P. doesn’t get to decide what Fair Use is, the law does. While the concept is somewhat nebulous, however it essentially allows you to excerpt small portions of books or news article in your own creative work.

The A.P. is following in the path of the RIAA and MPAA by trying to create a set of legal property rights that were never supposed to exist in the realm of Intellectual Property rights. What all three of these entities are really doing is trying to protect an industry that has been dying off for a long time, namely that of paid content.

The A.P. (and the RIAA and MPAA) need to understand the new paradigm that exists in today’s Internet world. The paradigm is one of fluidity, not static medium which can be sold as a service. One must wonder how much traffic was driven to the A.P.’s site through the thousands of links that bloggers provide on a daily basis. This smells suspiciously of cutting off one’s nose to spite their face.

You can see the list of different blogs that are boycotting the AP, and sign a petition here. While this author does not speak for the all of the Right Juris team, I will not be sourcing AP stories as long as they use heavy-handed tactics.

While this may seem oxymornic as the Supreme Court is the ultimate body that decides what the Constitution means, it does seem that yesterday’s Gitmo Habeas ruling might have violated the so called “exceptions” clause of the Article III. Section 2 of Article III of the Constitution says that:

“In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

The SCOTUS has a general jurisdiction to hear all cases in the US, but as the above section states, Congress has the ability to limit that jurisdiction however they wish. Essentially this is what Congress has done in the this case, they have given the executive the power to detain these prisoners and created a special military tribunal system to hear all legal matters regarding the detainees in Gitmo. In essence they took the power from the Supreme Court and created another special jurisdiction, just as Article III states that they can. Indeed, Scalia as much as acknowledges this in the Hamdan decision, stating:

“Though it does not squarely address the issue, the Court hints ominously that “the Government’s preferred reading” would “rais[e] grave questions about Congress’ authority to impinge upon this Court’s appellate jurisdiction, particularly in habeas cases . . . It is not clear how there could be any such lurking questions, in light of the aptly named “Exceptions Clause” of Article III, §2, which, in making our appellate jurisdiction subject to “such Exceptions, and under such Regulations as the Congress shall make,” explicitly permits exactly what Congress has done here.

So the real question is this; if the Supreme Court has violated the exceptions clause, does that fact render this opinion moot? If so, is the Bush administration free to ignore the opinion?