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Archive for July 1st, 2015

The Supreme Court Justice who most often agreed with the Obama Administration: Clarence Thomas

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The Obama Administration continues its bad record with respect to criminal justice and human rights. Adam Winkler reports in Slate:

The Supreme Court just ended its most liberal term in memory. Frommarriage equality to health care to housing discrimination tolegislative districting, the court decided a number of high-profile cases in ways favored by the political left. There was no better reflection of the liberal rout than the photos of President Obama joyously bear-huggingstaff members upon hearing of the health care ruling.

The president’s glee overshadows the relatively poor success rate the administration had this year at the Supreme Court. While the executive branchhistorically wins 60 to70 percent of its cases in the high court, this year the administration won only 38 percent. The court ruled against the administration in 13 of the 21 cases in which the federal government was a party, including Monday’s important decision curtailing the Environmental Protection Agency’s authority to regulate pollution from power plants.

The administration’s low win rate might seem to be the inevitable result of ideological disagreements between a liberal president and a conservative court. Yet the data suggest a more surprising story: The liberal justices voted against the Obama administration more often than the conservatives did.

The two justices who cast the most votes against the administration this term were Justices Ruth Bader Ginsburg and Stephen Breyer, each opposing the administration in 71 percent of the cases. Justice Sonia Sotomayor isn’t far behind, voting against the administration 67 percent of the time. Who voted the most with the administration? Justices Clarence Thomas and Anthony Kennedy, who each sided with the administration more often than not (in 52 percent of the cases).

A closer look at this term’s lineup suggests a reason: The administration was far more conservative on criminal justice issues than the Supreme Court was. Although a majority of the justices upheld Oklahoma’s right to use unreliable drugs for lethal injections, Justice Breyer’s critique of the death penalty—coupled with Justice Kennedy’s critique of solitary confinement in a case last week—more accurately captures the mood of the Supreme Court’s criminal justice decisions this year.

The court rejected the administration’s argument that fishermen can be prosecuted under the Sarbanes-Oxley Act for destroying illegal catch; that people can be prosecuted for criminal threats on Facebook without proof of intent; that police can extend a traffic stop to bring in drug-sniffing dogs; that convicts can’t sell their firearms; that prosecutors don’t have to prove a defendant knew he had a controlled substance analogue; and that aprovision of the Armed Career Criminal Act wasn’t unconstitutionally vague.

Add in the Supreme Court’s expansion of whistleblower protections and itsrefusal to allow the Board of Immigration Appeals to deport someone for unspecified drugs—both contrary to the administration’s arguments—and you have a remarkable number of cases this term promoting more liberal, less law-and-order outcomes than sought by the administration. The dissenters in these cases were an unlikely line-up of administration allies, in the main Justices Antonin Scalia, Samuel Alito, Thomas, and Kennedy.

When criminal justice cases are included in the assessment, the Supreme Court was in some ways more liberal than the Obama administration this term.

Continue reading.

Written by LeisureGuy

1 July 2015 at 8:05 pm

More outright theft by law enforcement: $167,000 taken for the simple reason that the officers wanted it

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Tim Cushing reports at TechDirt:

A federal judge has just ordered the government to return $167,000 it took from a man passing through Nevada on his way to visit his girlfriend in California. The officers really wanted that money, too. They used two consecutive stops to jerry-rig some probable cause… even though at that point they thought they were only dealing with $2000. From the original stop forward, the entire situation was deplorable, indisputably showing that everyone involved was more interested in taking (and keeping) a bunch of cash than enforcing laws or pursuing justice.

The order is a jaw-dropping read. It begins with the flimsiest of “reasonable suspicion” and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a “left-lane violation” — driving too slow in the passing lane. (This itself isn’t actually a moving violation, but the Supreme Court’s Heien decision has ensured that law enforcement needn’t be slowed by actual knowledge of the laws they’re supposed to be enforcing.)

This lead to some questioning, because reasons:

Upon request, Gorman produced his license and registration and told Monroe that he was traveling to Sacramento, California to visit “his chick.” Id. at 60:9-61:5. Gorman told Monroe that his girlfriend lived in downtown Sacramento, but was not able to produce her exact address, noting that it was entered into his GPS system. Id. at 84:2- 22. Gorman’s use of the word “chick” aroused Monroe’s suspicion that Gorman’s answers were rehearsed because Monroe thought that “chick” was an unusual word for a person Gorman’s age—thirty-one at the time of the stop—to use.

Obsolete vernacular = “reasonable suspicion.” That and State Trooper Greg Monroe felt Gorman’s claimed employment with a “beach activities and paddle board company” sounded similarly “rehearsed.” Monroe went back to his vehicle and tried to rustle up a K9 unit. But there were no units nearby, the records check was coming up clean and Monroe was running out of ideas. First, he told Gorman he was free to leave. Then he started fishing:

Immediately afterward, Monroe asked Gorman if he could ask some additional questions. Monroe first asked how Gorman could afford to drive a motor home cross-country when gas prices were over $3.00 per gallon. Monroe then asked if Gorman still sold paddle boards for a living, and asked about his compensation, to which Gorman responded “I don’t want to talk about how much I make.” At approximately 9:25 a.m., Monroe asked if there was anything illegal in Gorman’s motor home, or if he was carrying large amounts of U.S. currency. Gorman then told Monroe that he was only carrying about $2000 in U.S. currency in the motor home. At 9:25:45 a.m, Monroe asked Gorman “do you mind if we search the vehicle?,” to which Gorman said “I do mind, yes.” At this point, Monroe told Gorman that he was free to leave [for the second time], returned to his vehicle, and said “he’s carrying money” aloud to himself.

Monroe smelled money and he wasn’t about to let $2000 travel across his state without being apprehended. So, he called the Highway Patrol and told dispatch his suspcions, stating that the only way the vehicle could be searched was with the use of a drug dog. Dispatch called Deputy Doug Fisher and informed him that Gorman did not consent to a search and that he “might want to follow up on the information.” Here we have two different law enforcement entities basically colluding to perform a search simply because one entity experienced a refusal. The court isn’t impressed.

The Court is particularly troubled that the officers’ belief that Gorman would not consent to a search, and his opposition to the canine sniff, appears to have contributed to the officers’ purported reasonable suspicion to extend the stop and continue the investigation. Individuals have a right to refuse consent for a search, and the existence of this right requires that denial of consent not be a basis to prolong a stop.

On top of this, Monroe called Deputy Fisher directly to “relay his suspicions.” He also inflated the amount of money Gorman had admitted to be carrying with him — from $2000 to $5000. Fisher left the Sheriff’s Office ostensibly to perform a “roving patrol,” but soon decided to park himself on the side of the highway in order to catch Gorman when his RV passed by. Fisher pulled the RV over after it “crossed the fog line” a few times.

Having been stopped for a second time in under an hour, Gorman was understandably annoyed. He told Fisher the same thing he had told Monroe during his twenty-minute stop earlier. Fisher ran thesame records checks and received the same lack of anything actionable. Despite this, Fisher pushed for a canine search.

[A]pproximately twelve minutes into the traffic stop, Fisher released his drug-detection canine “Euros” from his vehicle. Fisher and Euros then approached the motor home and began walking around it in the clockwise direction, starting at the rear left-hand side of the vehicle. As Fisher and Euros circled the rear of the motorhome, Euros sat down near the vehicle’s back right compartment, facing the compartment. Fisher described this as a “committed sit and stare,” which he considered to be a positive alert.

Even if you believe — like the Supreme Court does — that drug dogs are mostly reliable and unlikely to respond to signals (unconscious or otherwise) from their handlers, Fisher’s next statements indicate that bringing a drug dog onto the scene is just an easy way to generate “probable cause” where none exists.

Gorman then referred to the back rear compartment and said “I can open that if you want to look in it. It’s charcoal and stuff like that, do you want to look in it?” Fisher replied “do you want to talk to me now?” Gorman replied “if he alerted somewhere, look in it because there’s no drugs.” Fisher then noted that odor could come out anywhere on the vehicle, and that the rear back compartment was on the “downwind side of the vehicle.”

Armed with the drug dog’s affirmation that drugs might be located somewhere in the RV, the deputy acquired a telephonic warrant and immediately began searching the entire interior of the RV. And while the drug dog continued to “alert” on objects inside the vehicle, no drugs were found. The only thing “illegal” in Gorman’s motorhome was $167,000 in cash, stashed away in the freezer, microwave and bedroom. Gorman was (for the third time in under two hours) free to go. But his money wasn’t.

Gorman fought back. Almost two-and-a-half years from the point the money was taken, it is now ordered to be returned. On top of that, Gorman will also be awarded attorney’s fees. Why? Because the government lied every step of the way.

First off, two different law enforcement officers performed consecutive stops, with the second stop being predicated on the “suspicions” generated by the first. This is something law enforcement cannot do. . .

Continue reading.

Written by LeisureGuy

1 July 2015 at 7:59 pm

There’s nothing ‘enlightened’ about executing the innocent

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Radley Balko writes in the Washington Post:

If there was a bright spot in yesterday’s regrettable Supreme Court decisionin Glossip v. Gross, it’s that at least two current justices — Stephen G. Breyer and Ruth Bader Ginsburg — are open to the idea that the death penalty is unconstitutional. It seems at least possible that Sonia Sotomayor may move in that direction as well. Unfortunately, that bright spot was overwhelmed by opinions from Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr. that indicate they are as adamant as ever about keeping capital punishment around, and, at least in the case of Thomas, open to expanding it to include juveniles, and for crimes other than murder.

As my colleague Mark Berman pointed out, there was an interesting and sad footnote to yesterday’s decision. In his dissent, Breyer noted the case of Glenn Ford, a Louisiana man who spent 30 years on death row before he was finally exonerated and released. Ford died of lung cancer just hours before the Glossip decision was released. Despite his exoneration, Ford was never compensated for his wrongful conviction or for the unfathomable amount of time he spent not only locked up but also awaiting his execution. He was released just in time to succumb to lung cancer, all while fighting the state of Louisiana for recompense. The man who prosecuted Ford, Mark Stroud, has since apologized, asked Ford’s forgiveness and declared the death penalty to be an “abomination” that “continues to scar the fibers of this society.”

Of course, Ford isn’t the only death-row inmate to be exonerated. There are more than 100 others, just since 1973. He isn’t even the only one in Louisiana.In Orleans Parrish alone, during the reign of notorious District Attorney Harry Connick, four death-row inmates were exonerated, representing 11 percent of the capital convictions during his tenure. Others were released without being granted full exonerations.

On the surface, yesterday’s decision in Glossip was about the constitutionality of a specific drug now used in some states for lethal injections. But the case touched off a broader and contentious discussion among the justices about lethal injection and the death penalty in general. Scalia in particular wrote a scathing, abrasive opinion that mocks “abolitionists” and bizarrely concludes that in opposing capital punishment, Breyer and like opponents of the death penalty “oppose the Enlightenment.”

Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, JUSTICE BREYER does not just reject the death penalty, he rejects the Enlightenment.

Of course, lots of Enlightenment thinkers were well aware of the perils of subjecting basic rights to the whims of democracy.  (Or as James Bovard once put it, “Democracy must be something more than two wolves and a sheep voting on what to have for dinner.”) The driving principle behind the Enlightenment was the rejection of blind deference to tradition and authority and instead embracing reason, individualism and empiricism. Both Scalia’s and Alito’s opinions are not only dismissive, they’re also downright contemptuous of Breyer’s use of data to show that the death penalty is unequally applied, racially biased and ineffective. They reject Breyer’s long list of cases in which prosecutors and/or police were shown to have manufactured evidence, hidden exculpatory evidence and committed other egregious misconduct. Instead, they simply point out that the Supreme Court has upheld the constitutionality of the death penalty for 40 years, so they aren’t about to consider it now. Here, for example, is Scalia:

A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.

This is about as thorough a rejection of Enlightenment principles as one can imagine a Supreme Court justice articulating. It’s a abrupt dismissal of empirical data (not even an attempt to grapple with it) in favor of an appeal to tradition.

The most compelling argument against the death penalty has always been innocence. Scalia undoubtedly knows this, which is why he over the years has attacked this argument by both insisting that it’s extremely unlikelyan innocent percent has ever been executed and that, even if it has happened, the execution wouldn’t be unconstitutional so long as the innocent person was afforded due process. The latter argument doesn’t tend to go over well. Most of us intuitively believe that if the right to due process means anything at all, it means you won’t be executed for a crime you didn’t commit. Or put another way, any system that not only allows an innocent person to be executed, but also is okay with it after the fact is, by definition, a system unconcerned with due process.

But Scalia’s first claim is increasingly under fire, too. Several journalists — most notably David Grann in the New Yorker — have made a compelling case for the innocence of Cameron Todd Willingham, who was executed by Texas in 2004. The sheer volume of DNA exonerations of death-row inmates suggests that there are serious flaws in how we try these cases. Common sense suggests that these same flaws also exist in cases for which DNA isn’t a factor and therefore doesn’t provide a safety net for wrongful convictions.

Scalia’s vituperative opinion in yesterday’s lethal-injection case is particularly brazen given the case of Henry Lee McCollum. . . .

Continue reading.

Written by LeisureGuy

1 July 2015 at 4:04 pm

General government incompetence from USAID

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Jenna McLaughlin reports in The Intercept:

When the official watchdog overseeing U.S. spending on Afghanistan asked the U.S. Agency for International Development recently for details about the 641 health clinics it funds there, the agency readily provided a list of geospatial coordinates for them.

But when the office of the Special Inspector General for Afghanistan Reconstruction (SIGAR) went looking for the $210 million worth of clinics, the majority of them weren’t there.

John Sopko, the special inspector general, sent USAID a letter on June 25 asking about the clinics.

“Thirteen coordinates were not located within Afghanistan,” the letter reads. Additionally, 13 more were duplicates, 90 clinics had no location data and 189 coordinate locations had no structure within 400 feet.

One set of coordinates was in the Mediterranean Sea.

“My office’s initial analysis of USAID data and geospatial imagery has led us to question whether USAID has accurate location information for 510 — nearly 80 percent — of the 641 health care clinics funded by the PCH [Partnership Contracts for Health] program,” wrote Sopko.

In his understated conclusion, Sopko noted drily: “To provide meaningful oversight of these facilities, both USAID and MOPH (the Afghan Ministry of Public Health) need to know where they are.” . . .

Continue reading.

Written by LeisureGuy

1 July 2015 at 4:02 pm

Data Shows Little Evidence for FBI’s Concerns About Criminals ‘Going Dark’

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It’s difficult to trust the FBI. Not only is there the matter of dissembling (describing laughable plots that the FBI had to use paid confidential informants (entrapment artists) to suggest, plan, and support before the FBI arrested the participants and issued press releases), but there’s also the outright incompetence (the FBI forensics lab did an incredibly bad job for years, and the FBI has deliberately avoided scientific testing to determine good procedures).

Now we see the FBI dissembling again, as described in Motherboard by Lorenzo Franceschi-Bicchierai:

In the last few months, several government officials, led by the FBI’s Director James Comey, have been complaining that the rise of encryption technologies would lead to a “very dark place” where cops and feds can’t fight and stop criminals.

But new numbers released by the US government seem to contradict this doomsday scenario.

In 2014, encryption thwarted four wiretaps out of 3,554, according to an annual report published on Wednesday by the US agency that oversees federal courts.

The report reveals that state law enforcement agencies encountered encryption in 22 wiretaps last year. Out of those, cops were foiled on only two occasions. As for the feds, they encountered encryption in just three wiretaps, and could not decipher the intercepted communications in two of them.

“This is on a downward trend, not upward.”

“They’re blowing it out of proportion,” Hanni Fahkoury, an attorney at the digital rights group Electronic Frontier Foundation (EFF), told Motherboard. “[Encryption] was only a problem in five cases of the more than 3,500 wiretaps they had up. Second, the presence of encryption was down by almost 50 percent from the previous year.

“So this is on a downward trend, not upward,” he wrote in an email.

In fact, cops found less encryption last year than in the year prior. In 2013, state authorities encountered encryption in 41 cases, versus 22 in 2014. At the federal level, there were three cases of encryption in 2014, against none in 2013. (The report also refers to five federal wiretaps conducted in “previous years” but only reported in 2014. Of those, the feds were able to crack the communications in four of the five.)

The FBI did not respond to Motherboard’s request for comment.

Yet, other experts warn that the Wiretap Report is only a small window into the world of government surveillance.

First of all, the FBI has been railing against encryption not just when it’s used for communications, but especially when it’s used to safeguard data on the phone or computer. The whole recent debate was spurred by Apple’s announcement that it wouldn’t be able to unlock phones for the police anymore, and that new iPhones would be encrypted by default. Wiretaps aren’t used to get that kind of data, but cover mostly communications.

Moreover, the FBI has said in the past that it doesn’t apply for wiretaps when it know it can’t intercept the targeted communications, according to Albert Gidari, a lawyer at Perkins Coie who has worked with technology firms on surveillance matters, and Jonathan Mayer, a computer scientist and lawyer at Stanford University.

“The report is suggestive, but hardly conclusive,” Mayer told Motherboard. “Much more telling, in my view, is that law enforcement and intelligence officials remain unable to provide episodes where encryption frustrated an investigation.”

So far, the FBI has yet to put forth a valid example where encryption really thwarted an investigation. In fact, some of the examples cited by Comey have been debunkedin media reports. . .

Continue reading.

Written by LeisureGuy

1 July 2015 at 12:23 pm

Why Obama Gave a Christian Speech Without Mentioning Jesus

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James Fallows continues his series of columns on the Obama speech in Charleston.

Written by LeisureGuy

1 July 2015 at 12:09 pm

Why do people believe myths about the Confederacy?

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James W. Loewen, Emeritus Professor of Sociology at the University of Vermont, has an interesting column in the Washington Post:

History is the polemics of the victor, William F. Buckley allegedly said. Not so in the United States, at least not regarding the Civil War. As soon as Confederates laid down their arms, some picked up their pens and began to distort what they had done, and why. Their resulting mythology went national a generation later and persists — which is why a presidential candidate can suggest that slavery was somehow pro-family, and the public believes that the war was mainly fought over states’ rights.

The Confederates won with the pen (and the noose) what they could not win on the battlefield: the cause of white supremacy and the dominant understanding of what the war was all about. We are still digging ourselves out from under the misinformation that they spread, which has manifested in both our history books and our public monuments.

Take Kentucky. Kentucky’s legislature voted not to secede, and early in the war, Confederate Gen. Albert Sidney Johnston ventured through the western part of the state and found “no enthusiasm as we imagined and hoped but hostility … in Kentucky.” Eventually, 90,000 Kentuckians would fight for the United States, while 35,000 fought for the Confederate States. Nevertheless, according to historian Thomas Clark, the state now has 72 Confederate monuments and only two Union ones.

Neo-Confederates also won western Maryland. In 1913, the United Daughters of the Confederacy (UDC) put a soldier on a pedestal at the Rockville courthouse. Montgomery County never seceded, of course. While Maryland did send 24,000 men to the Confederate armed forces, it sent 63,000 to the U.S. Army and Navy. Nevertheless, the UDC’s monument tells visitors to take the other side: “To our heroes of Montgomery Co. Maryland / That we through life may not forget to love the Thin Gray Line.”

In fact, the Thin Grey Line came through Montgomery and adjoining Frederick counties at least three times, en route to Antietam, Gettysburg and Washington. Lee’s army expected to find recruits and help with food, clothing and information. They didn’t. Maryland residents greeted Union soldiers as liberators when they came through on the way to Antietam. Recognizing the residents of Frederick as hostile, Confederate cavalry leader Jubal Early demanded and got $300,000 from them lest he burn their town, a sum equal to at least $5,000,000 today. Today, however, Frederick boasts what it calls the “Maryland Confederate Memorial,” and the manager of the Frederick cemetery — filled with Union and Confederate dead — told me in an interview, “Very little is done on the Union side” around Memorial Day. “It’s mostly Confederate.”

In addition to winning the battle for public monuments, neo-Confederates also managed to rename the war, calling it “the War Between the States.” Nevermind that while it was going on, no one called it that. Even Jeopardy!accepts it.

Perhaps most perniciously, neo-Confederates now claim that the South seceded for states’ rights. When each state left the Union, its leaders made clear that they were seceding because they were for slavery and against states’ rights. In its “Declaration Of The Causes Which Impel The State Of Texas To Secede From The Federal Union,” for example, the secession convention of Texas listed the states that had offended them: Maine, Vermont, New Hampshire, Connecticut, Rhode Island, Massachusetts, New York, Pennsylvania, Ohio, Wisconsin, Michigan and Iowa. These states had in fact exercised states’ rights by passing laws that interfered with the federal government’s attempts to enforce the Fugitive Slave Act. Some also no longer let slaveowners “transit” through their states with their slaves. “States’ rights” were what Texas was seceding against. Texas also made clear what it was seceding for: white supremacy:

We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.

Despite such statements, during and after the Nadir, neo-Confederates put up monuments that flatly lied about the Confederate cause. For example, . . .

Continue reading.

The outright lies are amazing, particularly those included in school textbooks: despite being blatant falsehoods, they are taught to young American children.

Written by LeisureGuy

1 July 2015 at 9:49 am

Posted in Education, GOP

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