Later On

A blog written for those whose interests more or less match mine.

Posts Tagged ‘Law

Depths of stupidity

leave a comment »

Those depths are very deep indeed. Glenn Greenwald takes a sounding:

MSNBC is televising a debate tonight between the Democratic presidential candidates in Nevada. It originally invited Dennis Kucinich to participate because Kucinich met the objective criteria the network created for inclusion. After Kucinich received less than 1% of the vote in both Iowa and New Hampshire, MSNBC rescinded its invitation. Kucinich brought suit yesterday in a Nevada state court seeking an injunction compelling his inclusion in the debate, and the state court judge sided with Kucinich.

The reactions to this decision are far more meaningful and interesting than the specific legal issues raised by this dispute. In every case where a court issues a decision on a controversial matter that produces an outcome which right-wing polemicists dislike, they immediately decide — literally overnight — that they are experts in the legal issues which the court had to resolve. Then — without bothering even to learn what those issues are, let alone bothering to read anything about them — they start condemning the court’s decision as some sort of lawless expression of “judicial activism.” In reality, the only ones engaged in “judicial activism” — which means, I suppose, determining the propriety of a court ruling based on outcome preferences rather than legal analysis — are the ill-informed critics of the court’s ruling, who are judging the ruling based exclusively on their objections to the outcome.

Read the rest of this entry »

Written by Leisureguy

15 January 2008 at 10:09 am

Posted in GOP

Tagged with

Stupidest legal arguments from Bush Administration

leave a comment »

Dahlia Lithwick from Slate:

This time last year, I offered up a top 10 list of the most appalling civil-liberties violations by the Bush administration in 2006. The grim truth is, not much has changed. The Bush administration continues to limit our basic freedoms, conceal its own worst behavior, and insist that it does all this in order to make us more free. In that spirit, it seemed an opportune moment to commemorate the administration’s worst legal justifications and arguments of the year. And so I humbly offer this new year’s roundup: The Bush Administration’s Top 10 Stupidest Legal Arguments of 2007.

10. The NSA’s eavesdropping was limited in scope.

Not at all. Recent revelations suggest the program was launched earlier than we’d been led to believe, scooped up more information than we were led to believe, and was not at all narrowly tailored, as we’d been led to believe. Surprised? Me neither.

9. Scooter Libby’s sentence was commuted because it was excessive.

Dick Cheney’s former chief of staff, Scooter Libby, was found guilty of perjury and obstructing justice in connection with the outing of Valerie Plame. In July, before Libby had served out a day of his prison sentence, President Bush commuted his sentence, insisting the 30-month prison sentence was “excessive.” In fact, under the federal sentencing guidelines, Libby’s sentence was perfectly appropriate and consistent with positions advocated by Bush’s own Justice Department earlier this year.

8. The vice president’s office is not a part of the executive branch.

We also learned in July that over the repeated objections of the National Archives, Vice President Dick Cheney exempted his office from Executive Order 12958, designed to safeguard classified national security information. In declining such oversight in 2004, Cheney advanced the astounding legal proposition that the Office of the Vice President is not an “entity within the executive branch” and hence is not subject to presidential executive orders. When, in January 2007, the Information Security Oversight Office asked Attorney General Alberto Gonzales to resolve the dispute, Cheney recommended the executive order be amended to abolish the Information Security Oversight Office altogether. In a new interview with Mike Isikoff at Newsweek, the director of the ISOO stated that his fight with Cheney’s office was a “contributing” factor in his decision to quit after 34 years.

7. The Guantanamo Bay detainees enjoy more legal rights than any prisoners of war in history.

This has been one of the catchiest refrains of the war on terror, right up there with the claim that the prisoners there are well-fed and cared for. The government brief in the December Supreme Court appeal on the rights of these detainees to contest their detentions proudly proclaimed that the “detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war.” That certainly sounds plausible. But as my colleague Emily Bazelon detailed here in Slate, a vast gaggle of historians, constitutional scholars, and retired military officers vehemently dispute that characterization of the legal processes afforded the detainees. The argument that Guantanamo prisoners have greater rights than they would otherwise be afforded relies on deep distortions of both fact and law.

6. Water-boarding may not be torture.

Water-boarding is torture. It’s torture under the Geneva Conventions and has been treated as a war crime in the United States for decades. The answer to the question of its legality should be as simple as the answer to whether boiling prisoners in oil is legal. But in his confirmation hearings to become U.S. attorney general, Michael Mukasey could not bring himself to agree. He claimed not to have been “read into” the interrogation program and to be incapable of speculating about hypothetical techniques. He added that he did not want to place U.S. officials “in personal legal jeopardy” and that such remarks might “provide our enemies with a window into the limits or contours of any interrogation program.” Even Sen. Lindsey Graham, R-S.C., seems to be catching on to what it means when senior legal advisers find themselves incapable of calling water-boarding torture.

5. Everyone who has ever spoken to the president about anything is barred from congressional testimony by executive privilege.

This little gem of an argument was cooked up by the White House last July when the Senate judiciary committee sought the testimony of former White House political director Sara Taylor, as well as that of former White House counsel Harriet Miers, in connection with the firing of nine U.S. attorneys for partisan ideological reasons. Taylor was subpoenaed in June and, according to her lawyers, she wanted to testify but was barred by White House counsel Fred Fielding’s judgment that the president could compel her to assert executive privilege and forbid her testimony. As Bruce Fein argued in Slate, that dramatic over-reading of the privilege would both preclude congressional oversight of any sort and muzzle anyone who’d ever communicated with the president, regardless of their wish to talk.

4. Nine U.S. attorneys were fired by nobody, but for good reason.

Of course, the great legal story of 2007 was the unprecedented firing of nine U.S. attorneys who either declined to prosecute Democrats or were too successful in prosecuting Republicans. After months of congressional hearings, subpoenas, and investigations, the mastermind behind the plan to replace these prosecutors with “loyal Bushies” has yet to be determined. The decision is instead blamed on a “process” wherein unnamed senior department officials came to a “consensus” decision. No one is willing to name names, even though the firings were ostensibly legal, because, in the words of the president himself, these prosecutors all “serve at the pleasure of the president” and can be fired for any reason. Nevertheless, the firing of the nine U.S. attorneys—many of whom had stellar records and job reviews—remains shrouded in secrecy, although at least according to everyone who’s testified, they were all fired for good reasons (which also cannot be articulated).

3. Alberto Gonzales.

I am forced to put the former attorney general into his own category only because were I to attempt to round up his best legal whoppers of the calendar year, it would overwhelm the rest of the list. As Paul Kiel over at Talking Points Memo so aptly put it earlier this year, Gonzales was and is clearly “the lying-est attorney general in recent history.” Kiel went on to catalog Gonzales’ six most egregious legal lies of the year, but I’ll focus here on just two. First, his claim at a March press conference that he “was not involved in seeing any memos, was not involved in any discussions about what was going on” with respect to the U.S. attorney firings. This was debunked shortly thereafter when Kyle Sampson testified that Gonzales was frequently updated throughout the process. Second, his April testimony that he had not “talked to witnesses because of the fact that I haven’t wanted to interfere with this investigation and department investigations,” which was promptly contradicted by Monica Goodling’s testimony about his efforts to coordinate his version of the story with hers.

2. State secrets.

Again, it’s virtually impossible to cite the single most egregious assertion by the Bush administration of the state-secrets privilege, because there are so many to choose from. This doctrine once barred the introduction into court of specific evidence that might compromise national security, but in the hands of the Bush administration, it has ballooned into a doctrine of blanket immunity for any conduct the administration wishes to hide. The privilege was invoked in 2007 to block testimony about its torture and extraordinary rendition program, its warrantless surveillance program, and to defend the notion of telecom immunity for colluding in government eavesdropping, among other things. No longer an evidentiary rule, the state-secrets privilege has become one of the administration’s surest mechanisms for shielding its most egregious activities.

1. The United States does not torture.

First there was the 2002 torture memo. That was withdrawn. Then there was the December 2004 statement that declared torture “abhorrent.” But then there was the new secret 2005 torture memo. But members of Congress were fully briefed about that. Except that they were not. There was Abu Ghraib. There were the destroyed CIA tapes. So you see, the United States does not torture. Except for when it does.

Written by Leisureguy

29 December 2007 at 4:58 pm

The secret government

leave a comment »

A one-time reader tried to maintain that the Bush administration was no more secret than the Clinton administration. I pointed out all the Clinton advisers, counselors, cabinet officers, and officials who had willingly gone to Congress when asked to provide public, sworn, on the record testimony; the significant expansion of the Freedom of Information Act; the willingness of Clinton to meet with the press and the people and answer unscreened questions; and so on. So he quit the blog. But the Bush secrecy continues to grow. This story is interesting:

The federal government has agreed to pay $105,000 in attorney fees for The News-Press after the newspaper successfully sued the Department of Homeland Security for the release of public records.

The News-Press and its sister Gannett Co. Inc. newspapers, The Pensacola News Journal and Florida Today, sued the agency when it refused to release details on the 1.1 million recipients of $1.2 billion in disaster aid after four hurricanes ripped through Florida in 2004.

The money was distributed by the Federal Emergency Management Agency, a branch of Homeland Security. FEMA refused to detail who received the aid after the newspapers requested that data under the Freedom of Information Act.

The newspapers initially failed in the attempt to get the information from the government, but they prevailed in The United States Court of Appeals for the Eleventh Circuit.

The government was ordered to turn over the addresses of recipients of disaster aid.

Under the Freedom of Information Act, winning a release of the records allowed the plaintiffs to return to court to request attorneys’ fees from the government agency.

Read the rest of this entry »

Written by Leisureguy

18 December 2007 at 9:51 am

Posted in Bush Administration, GOP, Government

Tagged with ,

Copywrong

leave a comment »

Bruce Schneier makes a good point:

Excellent article by John Tehranian: “Infringement Nation: Copyright Reform and the Law/Norm Gap“:

By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, he would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer — a veritable grand larcenist — or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.

The point of the article is how, simply by acting normally, all of us are technically lawbreakers many times over every day. When laws are this far outside the social norms, it’s time to change them.

Written by Leisureguy

26 November 2007 at 11:41 am

Posted in Daily life, Government

Tagged with ,

Excellent! Take that, Dianne Feinstein

leave a comment »

ThinkProgress:

Sen. Russ Feingold (D-WI) will offer an amendment in the Senate Judiciary Committee tomorrow to “strike retroactive immunity for telecommunications companies alleged to have assisted with the President’s illegal warrantless wiretapping program.” From his statement:

Granting retroactive immunity for companies that allegedly went along with this illegal program is unjustified and undermines the rule of law. Not only would retroactive immunity set the terrible precedent that breaking the law is permissible and companies need not worry about the privacy of their customers, but it would likely prevent courts from ruling on the President’s illegal warrantless wiretapping program. This program was one of the worst abuses of executive power in our history, and the courts should be able to rule on it once and for all.

Read his recent letter to the editor responding to John Ashcroft on the issue in The New York Times HERE.

Written by Leisureguy

14 November 2007 at 2:08 pm

Another who underwent waterboarding calls it torture

with one comment

It really seems pretty clear that waterboarding is torture—clear, that is, to all but a few: Cheney, Fox News, Bush, Judge Mukasey, …  From Dan Froomkin today:

Josh White writes in The Washington Post: “A former Navy survival instructor subjected to waterboarding as part of his military training told Congress yesterday that the controversial tactic should plainly be considered torture and that such a method was never intended for use by U.S. interrogators because it is a relic of abusive totalitarian governments.

“Malcolm Wrightson Nance, a counterterrorism specialist who taught at the Navy’s Survival, Evasion, Resistance and Escape (SERE) school in California, likened waterboarding to drowning and said those who experience it will say or do anything to make it stop, rendering the information they give nearly useless. . . .

“Unlike attorney general nominee Michael B. Mukasey, who called the technique repugnant but declined to say whether it is torture, Nance said unequivocally that waterboarding is a long-standing form of torture used by history’s most brutal governments, including those of Nazi Germany, Imperial Japan, North Korea, Iraq, the Soviet Union and the Khmer Rouge of Cambodia.”

Written by Leisureguy

9 November 2007 at 11:39 am

How the Law strangles Creativity

leave a comment »

Larry Lessig gives a superb talk on this issue here. (NSFW because of sound.)

Written by Leisureguy

9 November 2007 at 11:31 am

Posted in Art, Business, Video

Tagged with , ,

US finds itself alone again: life sentences for juveniles

leave a comment »

The US believes that children and adolescents can deserve life sentences, with no parole:

Last year the United Nations voted on a resolution to abolish life imprisonment without the possibility of parole for children and young adolescent offenders. The vote was 185 to 1 in favor of abolition, and the United States was the lone dissenter. Until 2005, moreover, when the Supreme Court outlawed the juvenile death penalty under the Eighth Amendment in the case of Roper v. Simmons, twenty states had allowed the execution of murderers who committed their crimes before the age of 18.

In this column, I will explore ways of thinking about crime in the U.S. that might help explain this punitive approach to juvenile offenders.

The Law Treats Juveniles as Presumptively Impaired

Many critics of the juvenile death penalty, prior to Roper v. Simmons, argued that such harsh penalties for juvenile offenders are radically at odds with the way the law ordinarily treats adolescents. With a drinking age of 21 and a voting age of 18, our law otherwise appears to embody the view that minors are not capable of making choices and governing their actions in the way that adults are.

In addition, most states have “parental involvement” statutes that require a minor who wishes to obtain an abortion to notify, or obtain consent from, at least one of her parents first (with exceptions for various circumstances). If we believe that adolescents are impaired enough to justify an across-the-board ban on drinking and voting and a requirement for consultation with parents before an abortion, then why would we choose to visit draconian penalties upon them when they violate the criminal law against homicide?

Read the rest of this entry »

Written by Leisureguy

7 November 2007 at 2:57 pm

Posted in Daily life, Government

Tagged with , ,

The Rule of Law

leave a comment »

Do we have it, or do we not? Glenn Greenwald sees many who want the US not to have the rule of law. Certainly Bush feels that way—that’s why he removed the prison time from Scooter Libby’s sentence (but did nothing about the guidelines that resulted in that prison time, so that everyone else convicted under the same circumstances will have to serve their prison time).

The Washington Post‘s Editorial Page, in the establishment-defending form of Fred Hiatt, today became but the latest Beltway appendage to urge the enactment of a special law providing amnesty to our nation’s poor, put-upon, lawbreaking telecoms:

There is one major area of disagreement between the administration and House Democrats where we think the administration has the better of the argument: the question of whether telecommunications companies that provided information to the government without court orders should be given retroactive immunity from being sued. House Democrats are understandably reluctant to grant that wholesale protection without understanding exactly what conduct they are shielding, and the administration has balked at providing such information. But the telecommunications providers seem to us to have been acting as patriotic corporate citizens in a difficult and uncharted environment.

Let’s leave to the side Hiatt’s inane claim that these telecoms, in actively enabling the Bush administration to spy on their customers in violation of the law, were motivated by the pure and upstanding desire to be “patriotic corporate citizens” — rather than, say, the desire to obtain extremely lucrative government contracts which would likely have been unavailable had they refused to break the law. Leave to the side the fact that actual “patriotism” would have led these telecoms to adhere to the surveillance and privacy laws enacted by the American people through their Congress in accordance with the U.S. Constitution — as a handful of actual patriotic telecoms apparently did — rather than submit to the illegal demands of the President. Further leave to the side that these telecoms did not merely allow warrantless surveillance on their customers in the hectic and “confused” days or weeks after 9/11, but for years. Further leave to the side the fact that, as Hiatt’s own newspaper just reported yesterday, the desire for warrantless eavesdropping capabilities seemed to be on the Bush agenda well before 9/11.

And finally ignore the fact that Hiatt is defending the telecom’s good faith even though, as he implicitly acknowledges, he has no idea what they actually did, because it is all still Top Secret and we are barred from knowing what happened here. For all those reasons, Hiatt’s claim on behalf of the telecoms that they broke the law for “patriotic” reasons is so frivolous as to insult the intelligence of his readers, but — more importantly — it is also completely irrelevant.

There is no such thing as a “patriotism exception” to the laws that we pass. It is not a defense to illegal behavior to say that one violated the law for “patriotic” reasons. That was Oliver North’s defense to Congress when he proudly admitted breaking multiple federal laws. And it is the same “defense” that people like North have been making to justify Bush’s violations of our surveillance laws — what we call “felonies” — in spying on Americans without warrants.

By definition, the “rule of law” does not exist if government officials and entities with influential Beltway lobbyists can run around breaking the law whenever they decide that there are good reasons for doing so. The bedrock principle of the “rule of law” is that the law applies equally to everyone, even to those who occupy Important Positions in Fred Hiatt’s social, economic and political circles and who therefore act with the most elevated of motives.

Read the rest of this entry »

Written by Leisureguy

14 October 2007 at 9:38 am

Can it be? Businesses robbing their employees?

leave a comment »

Can it really be that businesses deliberately fail to pay overtime to employees, in violation of the law? Apparently so. Very interesting article in Business Week on the practice—and how it leads to serious problems for the companies who broke the law. From the article:

No one tracks precise figures, but lawyers on both sides estimate that over the last few years companies have collectively paid out more than $1 billion annually to resolve these claims, which are usually brought on behalf of large groups of employees. What’s more, companies can get hit again and again with suits on behalf of different groups of workers or for alleged violations of different provisions of a complex tapestry of laws. Framed on the wall of Thierman’s office, for example, is a copy of a check from a case he settled for $18 million in 2003 on behalf of Starbucks (SBUX ) store managers in California. But the coffee chain is currently defending overtime lawsuits, filed by other attorneys, in Florida and Texas. Wal-Mart Stores (WMT )is swamped with about 80 wage and hour suits, and in the past two years has seen juries award $172 million to workers in California and $78.5 million in Pennsylvania.

“This is the biggest problem for companies out there in the employment area by far,” says J. Nelson Thomas, a Rochester (N.Y.) attorney, who, like Thierman, switched from defense to plaintiffs’ work. “I can hit a company with a hundred sexual harassment lawsuits, and it will not inflict anywhere near the damage that [a wage and hour suit] will.” Steven B. Hantler, an assistant general counsel at Chrysler, says plaintiffs’ lawyers are “trying to make all employees subject to overtime. It’s subverting the free enterprise system.”

In overtime cases, Depression-era laws aimed at factories and textile mills are being applied in a 21st century economy, raising fundamental questions about the rules of the modern workplace. As the country has shifted from manufacturing to services, for example, which employees deserve the protections these laws offer? Generally, workers with jobs that require independent judgment have not been entitled to overtime pay. But with businesses embracing efficiency and quality-control initiatives, more and more tasks, even in offices, are becoming standardized, tightly choreographed routines. That’s just one of several factors blurring the traditional blue-collar/white-collar divide. Then there’s technology: In an always-on, telecommuting world, when does the workday begin and end? The ambiguity now surrounding these questions is tripping up companies and enriching lawyers like Thierman.

About 115 million employees—86% of the workforce—are covered by federal overtime rules, according to the U.S. Labor Dept. The rules apply to salaried and hourly workers alike. Plenty of wage and hour lawsuits are filed on behalf of the traditional working class, be they truckers, construction laborers, poultry processors, or restaurant workers. But no one has been more successful than Thierman in collecting overtime for employees who are far from the factory floor or fast-food kitchen. His biggest settlements over the last two years have been on behalf of stockbrokers, many of whom earn well into the six figures. Thierman has teamed up with other lawyers to extract settlements totaling about a half-billion dollars from brokerage firms, including $98 million from Citigroup’s (C ) Smith Barney and $87 million from UBS Financial Services Inc. (UBS ) (As is typical in settlements, the companies do not admit liability.) With those cases drawing to a close, he and other attorneys already are pursuing new claims on behalf of computer workers, pharmaceutical sales reps, and accounting firm staff.

As Thierman sees it, these are the rank and file of a white-collar proletariat. “In the 1940s and 1950s,” he writes in an e-mail, “a large portion of American workers who were protected by overtime laws seem to have been forgotten as inflation drove up the absolute (not the relative) amount of compensation, and the bulk of workers began wearing sports coats and processing information instead of wearing coveralls and processing widgets.” In a subsequent interview he says: “I’m interested in the middle class—those are my folks.”

Read it all, along with the related items:

Graphic: No Industry Is Immune
Graphic: The Rules Reflect Old Assumptions…
Labor Law Time Warp

Written by Leisureguy

22 September 2007 at 11:30 am

Posted in Business, Daily life

Tagged with , , ,

%d bloggers like this: