Monthly Archives: March 2007

ACLU on Surreal Hicks Proceeding

In the don't-miss category is this blog entry at the ACLU Blog by Ben Wizner posting from the Gitmo hearings of Australian David Hicks, A Tailor-Made Guilty Plea.

Here are some of the best parts:

First, following a somewhat arcane discussion, the judge ruled preliminarily (while claiming not to) that one of Hicks's lawyers, Rebecca Snyder, could not represent Hicks, because she had been appointed by the chief military defense counsel but was not herself on active duty. This was wrong — and the judge allowed that he might revisit the issue after briefing — but the result was the first empty chair at Hicks's table.

Next, and far more troubling, the judge stated that Hicks's civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission's regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.

Instead, the judge had created his own version of the agreement — thereby, in Dratel's words, “usurping the authority of the Secretary of Defense.” Dratel would have signed even that version — so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. “I cannot sign a document that provides a blank check on my ethical obligations as a lawyer,” Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.

The judge was unpersuaded. “I find no merit in the claim that this is beyond my authority,” he said. “That's sometimes what courts do, they find a way to move forward.” Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.

“I'm shocked,” said Hicks, “because I've just lost another lawyer. Now I'm left with poor Mr. Mori.” (Major Dan Mori is Hicks's very able military defense counsel.)

This was followed by one of those almost-surreal moments that the Military Commissions routinely produce. The judge had just issued rulings that effectively deprived Hicks of two of his three lawyers. So he decided the time was right to address an issue of fundamental importance: Hicks's clothes. Hicks had arrived in court wearing beige prison attire. The judge said that he thought that a suit and tie, or business casual — which he helpfully defined — would be more appropriate. This practice was “designed to protect the presumption of innocence,” the judge explained, because Commission members who observed the accused in prison clothing might be subconsciously prejudiced against him.

Posted in Guantanamo | 3 Comments

Why The Cops Spied on ‘Billionaires for Bush’

Billionaires for Bush put out a press release today in response to the news that the New York city police were spying on them:

Billionaires For Bush Respond to N.Y.P.D. Spying Report

– Billionaires to release own domestic surveillance files as gesture of good faith.

– “We guessed he was an undercover officer when he kept asking for stock tips.” Meg A Bucks, National Co-Chair.

New York, NY, March 27th, 2007 Stunned by a recent New York Times report revealing that Billionaires For Bush were the targets of widespread surveillance by the New York Police Department in 2004, we issue the following statement:

“We join the chorus of voices calling upon the city to make its files public. As a gesture of good faith, today the Billionaires For Bush make our own domestic surveillance files public.

Public scrutiny of these files will reveal that we have infiltrated city hall and all key city departments, including zoning, development, taxation, and the Brooklyn Public Library. Our most important informant operated at the highest echelons of municipal governance. His code name (presciently) was “Snow Shovel,” and files will reveal his identity as Mayor Michael Bloomberg.

Snow Shovel (his Honor) operated as a double agent for Billionaires For Bush beginning in January 2004. During the R.N.C. he played a crucial role in banning protestors from Central Park so that members of Billionaires For Bush could play croquet. He continues to serve our interests well to this day. While we don't expect him to resign from his post, he no longer needs to feed us information. Another tax break for the upper brackets would be nice, though.”

About Billionaires For Bush
Armed with tuxedos, evening gowns, hard facts and a humorous spin, Billionaires for Bush is a do-it-yourself grassroots media campaign using humor and street theater to exposes politicians who support corporate interests at the expense of everyday Americans.

Posted in Civil Liberties | Leave a comment

Guns and Senatorial Privilege

The news that one of Senator Webb's aides has been arrested for (inadvertently?) carrying the Senator's gun into a Senate office building raises a fun question. It seems Sen. Webb gave the aide the gun which the Senator usually carries because the Senator was getting on a plane and couldn't take it on board.

It made me wonder if gun control laws of this sort, when applied to Senators and representatives in any way infringe Art. I, sec. 6, paragraph 1 of the Constitution which states,

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

My suspicion that the answer is “no” and that it is proper to apply speed limits, DUI, and other rules of general public safety to Senators and Representatives appears after superficial research to be correct, but not quite for the reason I imagined, at least according to LII's annotated Constitution,

Privilege From Arrest

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. 376 It does not apply to service of process in either civil 377 or criminal cases. 378 Nor does it apply to arrest in any criminal case. The phrase ''treason, felony or breach of the peace'' is interpreted to withdraw all criminal offenses from the operation of the privilege. 379.

Posted in Law: Reading the Constitution | Leave a comment

Gonzales Tries the ‘Pure Heart Empty Head’ Defense

The law as a rule frowns on the 'pure heart, empty head' defense, which is how we lawyers refer to claims that “I meant well; I didn't know it was wrong to borrow from the pension fund.”

Yet, amazingly, our Attorney General is now asserting a defense for the firings which is no more than that.

Gonzales: Firings were not improper Gonzales: What I can say is this: I know the reasons why I asked you — these United States attorneys to leave. And it — it was not for improper reasons. It was not to interfere with the public corruption case. It was not for partisan reasons.

[NBC's Brian Pete] Williams: To put this question another way — if you didn't review their performance during this process, then how can you be certain that they were fired for performance reasons?

Gonzales: I — I've given — I've given the answer to the question, Pete. I know — I know the reasons why I made the decision. Again, there's nothing in the documents to support the allegation that there was anything improper here. And there is an internal — department review to answer that question, to reassure the — the American people that there was nothing improper that happened here.

Got that? I had no role in the decision, I just signed off on it. I don't know how they came up with that list, but since I could never possibly have meant anything bad or partisan, and because I never had the brains to make any connection between the names on that list and high-profile Republican prosecutions, the public should give me credit for my pure heart regardless of whether there was anything in my brain.

Come on America. Leaving aside the rather dubious credibility of the claim that Gonzales is this clueless and dumb, can we afford an AG whose defense against charges of unethical and probably criminal activity is … blithering ignorance?

The Brits have a name for what Gonzales is claiming — “Nelsonian Knowledge,” based on the famous incident in which Admiral Nelson put a telescope to his blind eye so that he could say, “I see no ships signals”:

It is dishonest for a man deliberately to shut his eyes to facts which he would prefer not to know. If he does so, he is taken to have actual knowledge of the facts to which he shut his eyes. Such knowledge has been described as “Nelsonian knowledge”, meaning knowledge which is attributed to a person as a consequence of his “wilful blindness” or (as American lawyers describe it) “contrived ignorance”.
Twinsectra Limited v Yardley and Others, [2002] UKHL 12, at para. 112.

All this aside, given Gonzales's personal history as GWB's legal valet, it's hard to believe he lacked genuine, rather than merely Nelsonian, knowledge of what he was signing and why. Either way he doesn't deserve to stay in office; I suppose, though, the difference might matter to a grand jury.

Posted in Law: Criminal Law, Politics: US: GW Bush Scandals | 4 Comments

Family Values

Jim Morin has a great cartoon.


Click for a large version

Posted in Politics: US: 2008 Elections | Leave a comment

More Dispatches From the Land of the Free

They're not only watching us … they don't want us taking pictures in public. See The Cosmic Tap: An Accidental Interview with Lieutenant Phil Dreyer for what's only the latest in a huge series of incidents up and down the country in which police attempt threaten perfectly legal photographers.

Earlier (2004) item: A Snapshot of Our Freedoms

Posted in Civil Liberties | Leave a comment