Category: Civil Rights

Eric Arthur Blair* is Spinning in His Grave

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Barack “The Worst Constitutional Law Professor Ever” Obama and Eric “Place” Holder have drawn up new guidelines on Miranda warnings when terrorism is involved, and they are declaring them secret:

The Obama administration has issued new guidance on use of the Miranda warning in interrogations of terrorism suspects, potentially chipping away at the rule that bars the government from using information in court if it was gathered before a suspect was informed of his right to remain silent and to an attorney.

But the Department of Justice is refusing to publicly release the guidance, with a spokesman describing it in an interview as an “internal document.” So we don’t know the administration’s exact interpretation of Miranda, even though it may have significantly reshaped the way terrorism interrogations are conducted.

You have the right to remain silent, only, we won’t tell you if and when that applies.

The Bush/Cheney constitutional Alice in Wonderland games are now made legitimate, bipartisan and routine by the Obama administration.

Alan Grayson for President in 2012.

*George Orwell.

Yes

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Jack Balkin asks, with the regard to the clearly illegal and punitive pretrial detention of Bradley Manning, “Is the Obama Administration countenancing torture of a US serviceman?”

This has been another episode of simple answers to simple questions.

On a more substantive note, read Glen Greenwald’s essay on how our government, both the Bush and Obama administrations have created an environment of fear to silence dissent:

At the time, I dismissed those concerns as both ill-founded and even slightly paranoid. From a strictly legal standpoint, those concerns were and are ill-founded: WikiLeaks has never even been charged with, let alone convicted of, any crime, nor does it do anything different than what major newspapers around the world routinely do, nor has it been formally designated a Terrorist organization, nor — I believed at the time — could it ever be so designated. There is not — and cannot remotely be — anything illegal about donating to it. Any efforts to retroactively criminalize such donations would be a classic case of an “ex post facto” law unquestionably barred by the Constitution. But from a political perspective, the crux of the fear was probably more prescient than paranoid: within a matter of months, leading right-wing figures were equating WikiLeaks to Al Qaeda, while the Vice President of the U.S. went on Meet the Press and disgustingly called Julian Assange a “terrorist.”

But more significant than the legal soundness of this fear was what the fear itself signified. Most of those expressing these concerns were perfectly rational, smart, well-informed American citizens. And yet they were petrified that merely donating money to a non-violent political and journalistic group whose goals they supported would subject them to invasive government scrutiny or, worse, turn them into criminals. A government can guarantee all the political liberties in the world on paper (free speech, free assembly, freedom of association), but if it succeeds in frightening the citizenry out of exercising those rights, they become meaningless.

So much of what the U.S. Government has done over the last decade has been devoted to creating and strengthening this climate of fear. Attacking Iraq under the terrorizing banner of “shock and awe”; disappearing people to secret prisons; abducting them and shipping them to what Newsweek’s Jonathan Alter (when advocating this) euphemistically called “our less squeamish allies”; throwing them in cages for years without charges, dressed in orange jumpsuits and shackles; creating a worldwide torture regime; spying on Americans without warrants and asserting the power to arrest them on U.S. soil without charges: all of this had one overarching objective. It was designed to create a climate of repression and intimidation by signaling to the world — and its own citizens — that the U.S. was unconstrained by law, by conventions, by morality, or by anything else: the government would do whatever it wanted to anyone it wanted, and those thinking about opposing the U.S. in any way, through means legitimate or illegitimate, should (and would) thus think twice, at least.

We need to remember that the vast bulk of the citizenry in Saddam Hussein’s Iraq had no worry of arrest and torture, nor is there that fear in the even more brutal regime in Burma/Myanmar.  These were terror regimes, but the terror was directed at those who challenged the state, and it is now the deliberate policy of our government to do the same, it’s just a bit more subtle about it.

When Does Antonin Scalia Start to Wear a White Robe?

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He is now saying that absent legislation, there is a private right to discriminate against women:

The equal protection clause of the 14th Amendment to the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation, according to Supreme Court Justice Antonin Scalia.

In a newly published interview in the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn’t itself outlaw that behavior:

Seriously, when then Assistant Attorney General wrote that William Renquist wrote that “A judge who is a “strict constructionist” in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs,” he wasn’t kidding.

A strict constructionist is a judge who prejudges cases to benefit the powerful and corrupt.  They are results based jurists, and the depressing thing is that Scalia is arguably only the 4th most insane member of the court right now, after Roberts, Alito, and Thomas.

Good News on the Legislative Front Today

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The repeal of Don’t Ask Don’t Tell was signed into law, the Senate passed the START arms control treaty, and a new food safety bill that gives the FDA the power to order recalls passed the house and is heading to the President’s desk.

I still don’t see any gazillion dimensional chess here, but it’s a good day.

BTW, since the bill gives the military fairly broad discretion in how the ban is phased in, I would take even money that separations from the military will be continuing into 2012, because Obama won’t push the military on this.

EU Court Rules that Irish Abortion Law Violates Human Rights Standards

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I would argue that this is a another example of how Ireland is a 3rd world nation masquerading as a modern one by virtue of geography, but that critique would apply to the US as well:

Ireland’s constitutional ban on abortion violates the rights of pregnant women to receive proper medical care in life-threatening cases, the European Court of Human Rights ruled Thursday in a judgment that harshly criticized Ireland’s long inaction on the issue.

The judgment from the Strasbourg, France-based court will put Ireland under pressure to draft a law extending limited abortion rights to women whose pregnancies represent a potentially fatal threat to their own health.

A right to receive proper medical care?

Well, that doesn’t exist here either.

Obama is Now Blocking DADT Repeal

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So much for his promise to be a “Fierce advocate” for the LGBT:

Sources on the Hill are telling me a big reason DADT repeal isn’t moving faster comes right from 1600 Pennsylvania Ave. Despite President Obama’s public support for repeal, with DADT stacked up against the START nuclear arms reduction treaty that Obama carefully brokered with the Russians earlier this year, the White House is putting its legislative push behind START.

At this point, with more than the 60 votes secured to invoke cloture on a repeal bill in the Senate, obstacles to repealing DADT legislatively are a simple combination of time and priorities. Time is short in the lame duck session, and DADT repeal is just one of many items the Senate would like to address before it adjourns. Where repeal slots into the remaining legislative calendar, and how much time is left in that calendar when it does pop up, will make the difference between repealing the ban and keeping the status quo.

I strongly disagree with the next paragraph though:

No one questions that Obama wants to see DADT end, or that he wants to see it end this year. The concern is over the priorities: Obama, it seems, wants START to come first. And with the White House pushing START (in daily phone calls from top White House officials, according to one source on the Hill), Obama could end up standing in the way of DADT getting done.

Truth be told, Barack Obama’s excuses for not supporting LGBT civil rights, whether it’s his slow-walking DADT, or aggressively defending it in court, or ignoring judges orders to recognize gay marriages where they are legal, etc. rivals John McCain’s flip flops on gay rights for their mendacity.

Meanwhile, in the House…

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The House of representatives passes a stand alone bill to repeal Don’t Ask, Don’t Tell:

After impassioned debate both for and against the measure, the House of Representatives today passed a standalone bill to repeal the military’s “don’t ask, don’t tell” policy. The measure passed by a vote of 250 to 175, and the House broke into applause at the announcement of the final vote.

The measure was introduced Tuesday, in the final days of the Democratic-led 111th Congress, after the Senate last week failed to pass a defense authorization bill that included a repeal of the policy. “Don’t ask,” which has been in effect since 1993, prohibits gays from serving openly in the military.

House Speaker Nancy Pelosi said today that repealing the law would fix a “fundamental unfairness in our nation” and “honor the service and sacrifice of all who dedicated their lives to protecting the American people.”

Considering the relatively efficiencies of the House and the Senate, I am thinking that the “World’s greatest deliberative body”, i.e. the Senate, is nothing more than growth media for sociopathic narcissists.

The Good News

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The 6th Circuit of Appeals has ruled that law enforcement agencies must secure a warrant before seizing emails from Internet Service Providers.

While I am certain that Barack Obama, Eric “Place” Holder, and their Evil Minions™ will attempt to get this overturned by the Supreme Court

The full EFF press release is below the break:

Breaking News on EFF Victory: Appeals Court Holds that Email Privacy Protected by Fourth Amendment

News Update by Kevin Bankston

In a landmark decision issued today in the criminal appeal of U.S. v. Warshak, the Sixth Circuit Court of Appeals has ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers. Closely tracking arguments made by EFF in its amicus brief, the court found that email users have the same reasonable expectation of privacy in their stored email as they do in their phone calls and postal mail.

EFF filed a similar amicus brief with the 6th Circuit in 2006 in a civil suit brought by criminal defendant Warshak against the government for its warrantless seizure of his emails. There, the 6th Circuit agreed with EFF that email users have a Fourth Amendment-protected expectation of privacy in the email they store with their email providers, though that decision was later vacated on procedural grounds. Warshak’s appeal of his criminal conviction has brought the issue back to the Sixth Circuit, and once again the court has agreed with EFF and held that email users have a Fourth Amendment-protected reasonable expectation of privacy in the contents of their email accounts.

As the Court held today,

Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection…. It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve…. [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call–unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement….

Today’s decision is the only federal appellate decision currently on the books that squarely rules on this critically important privacy issue, an issue made all the more important by the fact that current federal law–in particular, the Stored Communications Act–allows the government to secretly obtain emails without a warrant in many situations. We hope that this ruling will spur Congress to update that law as EFF and its partners in the Digital Due Process coalition have urged, so that when the government secretly demands someone’s email without probable cause, the email provider can confidently say: “Come back with a warrant.”

Attachment Size

warshak_opinion_121410.pdf 316.97 KB

(emphasis original)

Julian Assange Granted Bail

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We are all Julian Assange

But the Swedish prosecutors promptly appealed the decision, meaning that he spends at least another 48 hours in custody, which in his case means rather harsh isolation.

On the other hand, it appears that reports of a grand jury investigating an indictment under the 1917 espionage act may be baseless.

Truth be told, a good prosecutor can find an sitting already sitting grand jury, and Mr. Assange from a legal perspective is certainly a ham sandwich.

Were I a prosecutor, I would not begin any process until Assange were in Sweden, where extraditions appears to be more likely than in the UK.

Of course, while this is going on, the internet is still being roiled by attacks on both sides of the issue, with Anonymous emerging from 4chan to hit the financial and IT companies that cut Wikileaks off, and other hackers going after Wikileaks, in a game of dueling DDOS attacks.

Hanging over all this is Assange’s poison pill file, which has been distributed to tens, if not hundreds, of thousands of people, waiting for the decryption key that will be distributed if anything happens to him or Wikileaks by a dozen or so of his colleagues.

And then there is the absurdity that Amazon, after tossing Wikileaks from their servers, is now selling copies of the cables for the Kindles.

In the mean time, here are the crucial government secrets that we now know as a result of the cables:

Of course there is some truly sensitive and shocking information out there, specifically that, the DPRK (North Korea) was willing to take significant steps to  reassure the US and the ROK (South Korea) in exchange for an Eric Clapton concert in Pyongyang.

Merciful heavens, we can’t let the citizenry know about that.

The final word on this is Pentagon Papers leaker Daniel Ellsberg’s, “EVERY attack now made on WikiLeaks and Julian Assange was made against me and the release of the Pentagon Papers at the time.“

You Didn’t Really Come Here to Hunt, Did You?*

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So, the Senate failed to end a filibuster and Don’t Ask Don’t Tell Repeal is dead, probably for at least the next 4 years.

Obama started calling people about this yesterday, so much for fierce advocacy, and the witch hunts and separations continue.

With financial reform, he was pushing back to keep it as small as possible.

With healthcare reform, he cut a deal that made us all slave labor for the insurance companies.

And not a peep from the administration about the Employee Free Choice Act (EFCA), or the Employment Non-Discrimination Act (ENDA).

And then there is the tax deal, which lowers the inheritance tax, and gives the Republicans a wedge to defund Social Security.

As I have noted before, he appointed Alan Simpson and Erskine Bowles, both supporters of “privatizing” Social Security to chair his debt commission.

I am beginning to think that he’s not a bad negotiator, but that he is getting everything that he wants, and what he wants are largely Republican policies.

I’m beginning to think that he bay actually getting he wants.

Talk about eleventy dimensional chess.

* It’s an old joke.

God Help Me, I Agree With Joe Lieberman

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Yes, the sanctimonious rat-fink is saying that the Senate should postpone its adjournment to make sure that there is time to repeal Don’t Ask Don’t Tell:

Sen. Joe Lieberman (I-Conn.) wants the Senate to stay in session until it’s passed legislation to do away with the military’s “Don’t ask, don’t tell” policy.

Lieberman, a key Senate proponent of repealing the military’s ban on openly gay or lesbian members, doesn’t want the chamber to adjourn until it’s acted on a defense authorization bill that contains a provision to do away with the policy.

Note that Lieberman has been a stronger advocate of repeal than either Barack “Fierce Advocate” Obama or Harry Reid.

For once, we have a bunch of wankers in the room, and Lieberman isn’t one.

In the Annals of the Unsurprising…

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The 10 month long Pentagon study shows that the overwhelming majority of those serving in the military have no problem with repealing Don’t Ask, Don’t Tell:

“We are convinced the U.S. military can make this change, even during this time of war,” the Defense Department report concludes, noting that 70% of the tens of thousands of military personnel and family members surveyed predicted there would be “positive, mixed or no effect” from allowing gays and lesbians to serve openly.

This won’t stop Republicans from blocking a repeal though, because pandering to a small, but vocal, minority of bigots is how they play.

Because Doing the Right Thing is Too Hard

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So, once again, after taking a bit of heat from Republicans, Barack Obama and His Evil Minions™ are looking to cave on a core value.

Only this time, it is not a core value of the Democratic party, but rather a core value which our nation was founded, the idea that the King’s power to simply imprison indefinitely on a whim is an anathema to a civilized society:

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.

The White House has made it clear that President Obama will ultimately make the decision, and a federal prosecution of Mohammed and four alleged co-conspirators has not been ruled out, senior officials said. Still, they acknowledge that a trial is unlikely to happen before the next presidential election and, even then, would require a different political environment.

You see, even after they tried a child soldier using laws that were made up after the actions, and using evidence derived from torture, Republicans are still saying bad things about them, so now, they will now just stop trials altogether.

Due process is just too politically inconvenient.

There is a point where moral cowardice crosses a line, and becomes actively evil, and emulating the practices of the worst despots in history out of electoral consideration is way over that line.

Oklamoma, Where the Dumb Comes Sweeping Down the Plains

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So, someone decides to ban “Sharia Law,” in Oklahoma, which will almost certainly be overturned, someone already has a claim that it invalidates his will in violation of the First Amendment, but the constitutional amendment, which intends to, “prohibit state courts from considering international law or Islamic law when deciding cases,” also has the effect of banning the 10 commandments:

[U of OK Law Professor Joseph] Thai said the ballot measure “raises thorny church-state problems as well” and could even affect a state judge’s ability to consider the Ten Commandments.

“The Ten Commandments, of course, is international law. It did not originate in Oklahoma or the United States,” Thai said.

Morons.

Both the politicians who place demagoguery above observing their oaths of office, and the voters who pulled the lever for this crap.

Appeals Court Allows DADT Expulsions to Continue

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They have made their temporary injunction against the judge’s ruling permanent, so DADT, and separations from the military, continue until probably at least next June:

With one judge dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a stay of the injunction of the military’s “Don’t Ask, Don’t Tell” policy issued by U.S. District Judge Virginia Phillips, pending the outcome of the government’s appeal of Log Cabin Republicans v. United States.

The immediate impact of the ruling, which was not unexpected by legal observers, means that — absent congressional or executive action — DADT will remain in effect through at least Spring 2011. The practical timeline for the appeal, however, means it actually would remain law much longer.

Damn.

Normally I Don’t Like Andy Borowitz’s Humor…

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But his take-down of Ginny Thomas’s “drunk dialing” phone harassment of Anita Hill, is truly an thing of beauty:

Three Things to Do When Clarence Thomas’s Wife Calls You
Posted by Andy Borowitz

Like many Americans, over the past several years I have been the recipient of multiple unwelcome voicemails from the wife of Supreme Court Justice Clarence Thomas. These calls have come in the middle of the night, at the crack of dawn, even at the dinner hour favored by telemarketers. Regardless of the time of day, all of these voicemails have one thing in common: she always sounds like she’s drunk-dialing me, except she appears to be completely sober.

………

One final note: if you get a call in the middle of the night and there is silence on the other end, that is not Virginia Thomas. That is Clarence Thomas.

A very well deserved take-down of a classless and corrupt, she is clearly playing on her marriage to a Supreme Court justice to secure large donations for her AstroTurf group, woman.

Go read Borowitz. He is very funny here.

Damn!

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A 3 judge panel of the 9th Circuit Court of Appeals just stayed the injunction against the enforcement of Don’t Ask Don’t Tell.

Thankfully, this is only a short term stay, basically it’s a stay until the panel has a hearing on the stay next week:

A federal appeals court on Wednesday temporarily stalled the landmark court decision allowing openly gay recruits to be accepted into the military.

In response to an emergency request from the government, a three-judge panel of the Court of Appeals for the Ninth Circuit, in San Francisco, issued a one-page order late in the day allowing the Pentagon to continue enforcing the “don’t ask, don’t tell” law, which bars openly gay, lesbian and bisexual service members.

The decision, which returns the law to the status quo before a Federal District Court judge in California declared it unconstitutional, will be in effect while the appeals court considers whether to issue a longer stay, until February, when the Ninth Circuit will hear the full appeal. A decision about the longer stay could occur as early as next week; the parties have been told to prepare briefs on the issues by Monday.

So the witch hunts continue.

This stance is both morally wrong, it’s bigotry, creates security problems, because people forced into in the closet are subject to blackmail, and politically stupid, because it demoralizes a large portion of the base less than 2 weeks before the election.

As I have said before, when you are doing something that is so transparently wrong and stupid on so many levels, it isn’t because you are interested in process, it’s because you really do oppose gay rights.

This is not the actions of someone who wants to, “repeal the law that denies gay and lesbian Americans the right to serve the country they love because of who they are. It’s the right thing to do.” This is the actions of someone who does not believes that gays should serve openly in the military.

OK, This Might Get Interesting

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The ACLU has initiated discovery on the Florida foreclosure “Rocket Docket,” because they believe that the abbreviated court proceedings might be a violation of homeowners due process rights, because, “Florida may be taking shortcuts and, in the process, forsaking constitutionally-required due process protections.”

It certainly appears that these courts are constructed with the specific goal of not doing either due diligence or due process.

Their press release after break

ACLU Seeks Public Records To Determine Constitutionality Of Foreclosure Proceedings In Florida
October 19, 2010

Lack Of Due Process Protections Would Disproportionately Impact Homeowners Of Color

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – The American Civil Liberties Union and the ACLU of Florida today filed public records requests with judicial officials in Florida to determine whether homeowners are having their constitutional rights violated during foreclosure proceedings and being unlawfully removed from their homes.

In Florida, where almost half a million foreclosure cases are pending, the state legislature recently spent over $9 million to create special foreclosure courts, staffed by retired judges, with the intent of speeding through the state’s backlog of such cases. But recent media reports in Florida and around the country, which reveal rampant error and fraud in the foreclosure process, have shown that courts should take particular care with foreclosure cases. Instead, in the rush to push foreclosure cases through the courts, Florida may be taking shortcuts and, in the process, forsaking constitutionally-required due process protections.

“It is disturbing that Florida may be implementing less exacting due process protections at a time when widespread flaws in the foreclosure system illustrate the need for increased vigilance and strict procedural safeguards,” said Larry Schwartztol, staff attorney with the ACLU Racial Justice Program. “These records requests aim to shed light on whether recent changes to Florida’s handling of foreclosure proceedings are violating the due process rights of homeowners.”

Filed with the Office of the State Court Administrator and the chief judges of all 20 of Florida’s circuit courts, the requests seek access to, among other things, all documents related to special court systems created to dispose of foreclosure cases and the rules and procedures in place that govern those systems.

Government data show that the foreclosure crisis across the country has disproportionately impacted communities of color. According to a recent report by the Center for Responsible Lending, nearly 8 percent of both African Americans and Latinos have lost their homes to foreclosures, as compared to 4.5 percent of whites. Additionally, the indirect losses in wealth that result from foreclosures as a result of depreciation to nearby properties will also disproportionately impact communities of color. The Center for Responsible Lending report estimates that between 2009 and 2012, the African American and Latino communities will be drained of $194 and $177 billion, respectively, in these indirect “spillover” losses alone.

“Communities of color in Florida and across the country are hit hardest if courts disregard the kinds of protections that are meant to uphold people’s basic constitutional rights,” said Muslima Lewis, Senior Staff Attorney and Director of the Racial Justice Project of the ACLU of Florida. “Getting the documents we are requesting will be an important first step toward exposing and addressing any systemic injustices that may exist in the Florida foreclosure court systems.”

Copies of the ACLU’s public records requests are available online at: www.aclu.org/racial-justice/aclu-seeks-information-about-constitutionality-florida-foreclosure-courts