Category: Justice

This Would Be Followed by a Suspicious Small Plane Crash

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An NSA official has mooted the idea that Edward Snowden be granted amnesty in exchange for his giving back all the documents:

A National Security Agency official said in an interview released Friday that he would be open to cutting an amnesty deal with intelligence leaker Edward Snowden if he agreed to stop divulging secret documents.

Rick Ledgett, who heads the NSA’s task force investigating the damage from the Snowden leaks, told CBS television’s “60 Minutes” program that some but not all of his colleagues share his view.

“My personal view is, yes, it’s worth having a conversation about” a possible deal, said Ledgett, according to excerpts of the interview due to air Sunday.

But Snowden would have to provide firm assurances that the remaining documents would be secured.

“My bar for those assurances would be very high… more than just an assertion on his part,” said Ledgett.

And if Snowden were to accept this, and then return to the United States, they would find a way to imprison him or kill him anyway.

Omerta must be enforced.

Supreme Court Considers the Death of the 5thAmendment

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One of the foundations of our civil rights is that you have the right not to testify against yourself, and that asserting this right cannot be used against you.

In other words, not testifying cannot be used against you, whether in the trial or in the sentencing, except it appears in the punishment phase of a death penalty case:

As in many recent cases applying limits on relief contained in the Anti-Terrorism and Effective Death Penalty Act’s text (AEDPA, 28 U.S.C. §2254(d)(1)), Wednesday’s argument in White v. Woodall involved mind-numbing hairsplitting. On the state’s side, Susan Lenz, an attorney in the office of Kentucky’s attorney general, sought to explain why Woodall’s entitlement to a “no-adverse-inference” instruction at the punishment phase of his capital trial was not “clearly established” at the time the Kentucky courts rejected his constitutional claim. Yes, the Supreme Court had held that the Fifth Amendment entitles a defendant to a no-adverse-inference instruction at trial (Carter v. Kentucky). Yes, the Court had announced that the right against self-incrimination applies in punishment as well as trial proceedings (Estelle v. Smith). And, yes, the Court had reversed a sentence where a trial court had actually made an adverse inference regarding a contested fact based on a defendant’s silence at sentencing (Mitchell v. United States). But here, Lenz argued, the defendant sought a no-adverse-inference instruction when he had conceded all of the facts concerning his death eligibility. Because the state had already satisfied its burden of proof, the defendant’s silence would not be used to make the state’s case.

Kentucky is arguing that a refusal to testify can be used as affirmative evidence of lack of remorse, and hence used to sentence him to death.

Delightful.

Here’s hoping that the Supreme Court makes the right decision, but I doubt it.

Major Supreme Court Not-Ruling on Labor Organizing

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After giving cert (accepting) the case, the Supreme Court has dismissed the case, essentially saying, “Oops, my bad.”

Unions dodged a bullet today when the Supreme Court took the unusual step of dismissing the strange and possibly disastrous case of Mulhall v. Unite Here Local 355 as “improvidently granted.”

Though the dismissal leaves some bad law in place in the 11th Circuit Court of Appeals, which includes Florida, Alabama and Georgia, labor should nonetheless breathe a sigh of relief.

In Mulhall, a Florida casino employee backed by the anti-union National Right to Work Legal Defense Foundation (NRTW) argued that neutrality agreements violate an anti-bribery provision in the Taft Hartley Act of 1947 and therefore constitute a federal crime.

Making neutrality agreements a crime would have struck at the heart of organizing as it is practiced today. The neutrality approach—in which the employer agrees not to oppose an organizing campaign—has been the mode of choice in most union drives since the ‘90s. The employer usually further promises to “card check,” which means that it will recognize the union if a majority of the employees sign cards stating their desire for union representation.

………

Although this was a bad ruling, letting it stand would have been less dangerous than the approach Unite Here took—appealing it to the Supreme Court and giving them the chance to invalidate neutrality agreements entirely. Though incorrectly reasoned, the 11th Circuit decision did not end neutrality agreements as we know them. The precedent may have caused some problems for unions in the 11th Circuit by scaring some potentially cooperative employers into demanding NLRB elections, by inviting additional lawsuits from the NRTW (which uses “strategic litigation” to “eliminate coercive union power and compulsory unionism abuses”), or by posing a possible danger in the hands of a future, zealous Republican U.S. Attorney in Florida, Alabama and Georgia. However, the case did not pose an immediate threat that warranted bringing this case before the Supreme Court—a court that has been found to be the most pro-business Supreme Court since World War II.

I’m not sure of his analysis, but the dismissal is profoundly odd.

  • They accepted the case.
  • They had oral arguments.
  • Then they dismissed the case.

My guess right now is that the Supreme Court has 5 justices more or less inclined to rule that neutrality agreements are bribery (WTF?!?!?!), but one, or two, of the 5 decided that they needed some less expansive cases to build a foundation to justify to their partisan goal of gutting organized labor.

If you want to look at the legal minutae here, try SCOTUS blog.

Your Moment of Kafka

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There was a crazy guy in New York City’s Times Square, one Glenn Broadnax, who was wandering into traffic.

Why is this news?  After all, crazy people interfering with traffic is not particularly newsworthy in Manhattan.

Well it becomes news because, police shot at him while trying to apprehend him, and missed, striking innocent bystanders.

Because of this the prosecutor charged Mr. Broadnax with assault ……… for getting shot at:

An unarmed, emotionally disturbed man shot at by the police as he was lurching around traffic near Times Square in September has been charged with assault, on the theory that he was responsible for bullet wounds suffered by two bystanders, according to an indictment unsealed in State Supreme Court in Manhattan on Wednesday.

The man, Glenn Broadnax, 35, of Brooklyn, created a disturbance on Sept. 14, wading into traffic at 42nd Street and Eighth Avenue and throwing himself into the path of oncoming cars.

A curious crowd grew. Police officers arrived and tried to corral Mr. Broadnax, a 250-pound man. When he reached into his pants pocket, two officers, who, the police said, thought he was pulling a gun, opened fire, missing Mr. Broadnax, but hitting two nearby women. Finally, a police sergeant knocked Mr. Broadnax down with a Taser.

The shootings once again raised questions about the police use of firearms in crowded areas and drew comparisons to a shooting a year ago, when officers struck nine bystanders in front of the Empire State Building when they killed an armed murder suspect.

Initially Mr. Broadnax was arrested on misdemeanor charges of menacing, drug possession and resisting arrest. But the Manhattan district attorney’s office persuaded a grand jury to charge Mr. Broadnax with assault, a felony carrying a maximum sentence of 25 years. Specifically, the nine-count indictment unsealed on Wednesday said Mr. Broadnax “recklessly engaged in conduct which created a grave risk of death.”

“The defendant is the one that created the situation that injured innocent bystanders,” said an assistant district attorney, Shannon Lucey.

You are charging a clearly disturbed man with felony assault for somehow “forcing” to fire recklessly firing into a crowded area?

What the f%$#?

The Department of Homeland Security Outdoes Orwell And Kafka

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In the first case to make it to court over the no-fly list, DHS has taken abuse of power to a whole new level.

The case, Rahinah Ibrahim v. Department of Homeland Security.

The claim of DHS is that the list is a state secret, so they won’t even acknowledge that there is a list, much less if someone is on the list, until of course the airlines refuse you a boarding pass, but even then they cannot tell you why they are:

Airlines aren’t told why they have been forbidden to transport any particular person, and are forbidden from telling anyone that they are on the “no-fly” list — although of course that eventually becomes obvious when the airline refuses to issue a boarding pass to an otherwise qualified fare-paying would-be passenger.  The U.S. government’s policy is never to confirm or deny the existence of a no-fly order. That is considered a “state secret”.

 Needless to say, all this makes a mockery of due process and has, until now, frustrated judicial review of no-fly decisions and orders.  Despite numerous attempts to challenge the system of “no-fly” lists and orders, Rahinah Ibrahim v. Department of Homeland Security, et al. (docket and more recent documents) is the first such case to make it to trial.

 Dr. Ibrahim, a Malaysian citizen, was a doctoral candidate at Stanford University, in the U.S. on a valid student visa, when she tried to fly home to Malaysia with her daughter in 2005.  She was refused passage on a United Airlines flight from San Francisco International Airport, detained, and interrogated by SFO airport police.  Although she was ultimately bound for Malaysia, she had planned to stop over in Hawaii to present a research paper at a conference there. She was denied boarding on a domestic flight from San Francisco to Kona. She was allowed to fly to Kona the next day, and on to Malaysia after the conference a few days late, but her U.S. visa was then revoked (although she wasn’t notified, and didn’t learn this until she was at the airport in K.L. trying to check in for a flight back to SFO a couple of months later). She hasn’t been able to return to the U.S. since, even though she had lived legally in the U.S. for many years, had met and married her husband in the U.S., and one of children was born in the U.S. and is a U.S. citizen.  She completed her dissertation remotely, received her Stanford Ph.D. in absentia, and is now a professor at a major Malaysian public university, with an extensive list of academic publications.

 Several other “no-fly” lawsuits have been dismissed without getting far enough to have a judge, much less a jury, review the challenged “no-fly” orders on their merits. Others that haven’t yet made it to trial, but haven’t yet been dismissed, include that of Gulet Mohamed in Northern Virgina and Latif et al. v. Holder in Portland, OR.  Both of these cases involve U.S. citizens who were effectively banished from the U.S. by having their names being placed on the “no-fly” list while they were abroad, preventing them from coming home.

 The city and county of San Francisco paid Dr. Ibrahim $225,000 to settle her claims against the airport police, but the Federal government agencies and employees have opposed Dr. Ibrahim’s right to even have the court review the legality of their actions.

But wait there’s more.

You see, after the lawyers for Dr. Ibrahim put her daughter on the witness list, DHS put that daughter on their no fly list:

The Federal civil rights trial in Ibrahim v. DHS — the first lawsuit seeking judicial review of a government “no-fly” order to make it to trial — began this morning in San Francisco with a surprise:

 When the case was called at 7:30 a.m., Elizabeth Pipkin and Christine Peek, pro bono lawyers for the plaintiff Dr. Rahinah Ibrahim, began by informing U.S. District Judge William Alsup that Dr. Ibrahim’s oldest daughter Raihan Mustafa Kamal was denied boarding in Kuala Lumpur yesterday when she tried to board a flight to San Francisco to observe and testify at the trial in her mother’s lawsuit.

 Ms. Mustafa Kamal, an attorney licensed to practice law in Malaysia, was born in the U.S. and is a U.S. citizen. Ms. Mustafa Kamal was with her mother when Dr. Ibrahim was denied boarding on a flight from K.L. to San Francisco in 2005 (after having been told that her name had been removed from the “no-fly” list) under what now seem eerily similar circumstances. The DHS had been given notice that Ms. Mustafa Kamal would testify at the trial as an eyewitness to those events she witnessed in 2005.

 ………

 “We may have to have a separate evidentiary hearing about this,” Judge Alsup said, and ordered the defendants to provide further information tomorrow (Tuesday). “I want to know whether the government did something to obstruct a witness, a U.S. citizen.”

(emphasis original)

So, they put a witness, and an American citizen at that, on the no fly list in order to prevent them from testifying, and then, they lied to the judge about it:

Ms. Pipkin reminded the court of what government counsel Paul Freeborne of the Department of Justice told the court before the trial recessed on Monday:

Freeborne: Your Honor, we’ve confirmed that the defendants did nothing to deny plaintiff’s daughter boarding. It’s our understanding that she just simply missed her flight. She has been re-booked on a flight tomorrow. She should arrive tomorrow.

“None of that was true,” Ms. Pipkin told the court this morning. “She didn’t miss the flight. She was there in time to check in. She has not been rebooked on another flight.” And most importantly, it was because of actions by the DHS — one of the defendants in Dr. Ibrahim’s lawsuit — that Ms. Mustafa Kamal was not allowed to board her flight to SFO to attend and testify at her mother’s trial.

 Ms. Pipkin said that Ms. Mustafa Kamal had sent her a copy of the “no-board” instructions which the DHS gave to Malaysia Airlines, and which the airline gave to Ms. Mustafa Kamal to explain as much as it knew about why it was not being allowed to transport her. Ms. Pipkin handed Judge William Alsup a copy of the DHS “no-board” instructions to Malaysia Airlines regarding Ms. Mustafa Kamal.

At least now, we may have a reason as to why she is on the no fly list:

The FBI agents also asked about whether Dr. Ibrahim was familiar with Jemaah Islamiyyah in Malaysia. She said she had heard of it only from reading online newspapers, but that from what she had read, it was an un-Muslim terrorist organization.

 Later in her deposition, Dr. Ibrahim noted that since returning to Malaysia in 2005, she has become active in Jamaah Islah Malaysia, a non-profit professional networking group for Muslims who have returned to Malaysia after post-secondary schooling in the U.S. and Europe. The two groups have names that could easily be confused by non-Malays, and are sometimes referred to by the same acronym, “JIM”. But both are well-known and readily distinguishable to Malaysians. And the FBI agents who visited her in 2004 didn’t ask about “Jamaah Isla Malaysia”, the entirely innocent organization with which Dr. Ibrahim is now involved. This potential confusion is the only hint in the public record to date about any possible explanation, legitimate or not, for FBI “Special Agent” Kelly’s nomination of Dr. Ibrahim for inclusion on the “no-fly” list.

I fully expect the US Attorney to f%$#ing turn into a f%$#ing cockroach at this point.

The full sordid story, over the past few years is here.

There are a whole bunch of people at DHS, the FBI, and the DoJ who really need to have their security clearances pulled as arbitrarily as Dr. Ibrahim’s right to travel was.

Here is a suggestion for Barack “Worst Constitutional Law Professor ever™” Obama.  Realize that your state security apparatus has as much interest in fairness, or civil rights, or basic American values as much as Richard Bruce Cheney is interested in discussing who authorized the leaking Valerie Plame’s CIA covert operative status.

So Google Funds ALEC, but Walmart Won’t

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The American Legal Exchange Council has been dumped by a number of corporate sponsors following the “Stand Your Ground” murder of Trayvon Martin:

The Guardian has learned that the American Legislative Exchange Council (Alec), which shapes and promotes legislation at state level across the US, has identified more than 40 lapsed corporate members it wants to attract back into the fold under a scheme referred to in its documents as the “Prodigal Son Project”.

The target firms include commercial giants such as Amazon, Coca-Cola, General Electric, Kraft, McDonald’s and Walmart, all of which cut ties with the group following the furore over the killing of the unarmed black teenager Trayvon Martin in Florida in February 2012.

Alec was embroiled in the controversy surrounding Florida’s 2005 “stand-your-ground” law under which George Zimmerman, the neighbourhood watch volunteer who shot and killed the 17-year-old Martin, initially claimed self-defence. The Florida law was picked up by Alec, and, working in partnership with the National Rifle Association, used as a template for one of its “model bills”, which was then taken up by other states across the country.

The Guardian has learned that by Alec’s own reckoning the network has lost almost 400 state legislators from its membership over the past two years, as well as more than 60 corporations that form the core of its funding. In the first six months of this year it suffered a hole in its budget of more than a third of its projected income.

So, ALEC is too evil for Walmart, but not too evil for Google.

Excuse me, while my head explodes.

Remember that Platinum Coin Idea During the Debt Shutdown?? The Idea that the Obama Administration Dismissed Out of Hand?

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It appears that while they were publicly treating it as crazy talk, internally, they were seriously looking at the depositing a trillion dollar coin at the Federal Reserve:

The Obama administration was serious enough about manufacturing a high-value platinum coin to avert a congressional fight over the debt ceiling that it had its top lawyers draw up a memo laying out the legal case for such a move, The Huffington Post learned last week.

 The Justice Department’s Office of Legal Counsel, which functions as a sort of law firm for the president and provides him and executive branch agencies with authoritative legal advice, formally weighed in on the platinum coin option sometime since Obama took office, according to OLC’s recent response to HuffPost’s Freedom of Information Act (FOIA) request. While the letter acknowledged the existence of memos on the platinum coin option, OLC officials determined they were “not appropriate for discretionary release.”

 HuffPost submitted the FOIA request when there was increased speculation about the use of the platinum coin option ahead of the debt ceiling crisis this fall. Under the compromise reached between the House and Senate following the government shutdown, the U.S. will hit the debt ceiling once again on Feb. 7, though the Treasury can use extraordinary measures to extend that deadline.

 Supporters of the platinum coin option say that under a 1996 law allowing the Treasury Department to mint a platinum coin in any denomination, the president could order the manufacture of, say, a $1 trillion coin that would be deposited in the Federal Reserve. The Treasury Department would then use the platinum coin funds to meet government obligations without the need for Congress to grant any additional spending powers.

There are a number of reasons for the Obama administration to fight the FOIA request:

  1. Their general fetish about executive branch secrecy.
  2. The OLC ruled that it was not legal, and they wish to retain ambiguity to help with the next round of negotiations.
  3. The OLC ruled that it was legal, and they wish to retain ambiguity to prevent potential legislative action, or a court case, until they use it.

My money* is on a dumb ass secrecy fetish.

The idea that a legal opinion on monetary policy (seigniorage) is somehow, “not appropriate for discretionary release,” is completely ludicrous.

The only potential harm that can come from a release is insider trading from an unauthorized release.

*My money in this case is about 50 Zimbabwean dollars.

Well, This Might Explain an Outbreak of Huevos in the Senate

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It appears that someone pointed out to Dem Senators that some major abortion cases in courts dominated by Republican appointees., and the potential of crippling rulings girded the Democratic Caucus into action:

Within hours of each other, two federal appeals courts handed down separate decisions that affirmed sharp new limits on abortion and birth control. One on Oct. 31 forced abortion clinics across Texas to close. The other, on Nov. 1, compared contraception to “a grave moral wrong” and sided with businesses that refused to provide it in health care coverage.

“These are the kinds of decisions we are going to have to live with,” a blunt Senator Harry Reid, the Democratic majority leader, warned his caucus later as it weighed whether to make historic changes to Senate rules. Those changes would break a Republican filibuster of President Obama’s nominees and end the minority party’s ability to block a president’s choices to executive branch posts and federal courts except the Supreme Court.

The moment represented a turning point in what had been, until then, a cautious approach by Democrats to push back against Republicans who were preventing the White House from appointing liberal judges. All the more glaring, Democrats believed, was that they had allowed confirmation of the conservative judges now ruling in the abortion cases. Republicans were blocking any more appointments to the court of appeals in Washington, which issued the contraception decision.

Faced with the possibility that they might never be able to seat judges that they hoped would act as a counterweight to more conservative appointees confirmed when George W. Bush was president, all but three of the 55 members of the Senate Democratic caucus sided with Mr. Reid. The decision represented a recognition by Democrats that they had to risk a backlash in the Senate to head off what they saw as a far greater long-term threat to their priorities in the form of a judiciary tilted to the right.

Gee, you think?

Now is the time for the Senate to get the train rolling, and some liberal, and young, judges on the Federal Circuit Courts.

Toronto Has Officially Jumped the Shark

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You know that it’s true, because Florida, home of the hanging chad and governor Batboy, is now looking down on Canada’s largest city:

A north Florida sheriff has filed drug charges against a local mayor, saying Bradford County “isn’t Toronto.”

Hampton Mayor Barry Layne Moore was arrested Monday afternoon in Polk County on a Bradford County warrant.

Bradford County Sheriff Gordon Smith appeared to draw a comparison between Moore and Toronto Mayor Rob Ford, who has admitted to smoking crack cocaine while he was in a drunken stupor.

Authorities say Moore faces charges of possessing and selling Oxycodone.

Congratulations Toronto, you are now the butt of jokes from Floridians.

Your fall is complete.

Today’s Must Read

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It’s, “Here’s why Wall Street has a hard time being ethical,” in the Guardian, and here is the money quote:

That’s the paradox at the core of the settlements we’re seeing: where is the real responsibility? Others were doing it, yes. Banks should be fined, yes. But somebody should be charged. Yet the people who really should be held accountable have not. They are the bosses, the managers and CEOs of the businesses. They set the standard, they shaped the culture. The Chuck Princes, Dick Fulds, and Fred Goodwins of the world. They happily shepherded and profited from a Wall Street that spun out of control.

A precedent needs to be set, to slow down Wall Street’s wild behavior. A reminder that rules are there to be followed, not exploited. The managers knew what was going on. Ask anyone who works at a bank and they will tell you that.

The excuse we have long accepted is ignorance: that these leaders couldn’t have known what was happening. That doesn’t suffice. If they didn’t know, it’s an even larger sin.

Go read the rest.

Fed Judge Rules Parsonage Tax Exemption Unconstitutional

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The Freedom From Religion Foundation prevailed in their challenge:

The Freedom From Religion Foundation and its co-presidents Annie Laurie Gaylor and Dan Barker have won a significant ruling with far-reaching ramifications declaring unconstitutional the 1954 “parish exemption” uniquely benefiting “ministers of the gospel.”

 “May we say hallelujah! This decision agrees with us that Congress may not reward ministers for fighting a ‘godless and anti-religious’ movement by letting them pay less income tax. The rest of us should not pay more because clergy pay less,” Gaylor and Barker commented.

 U.S. District Judge Barbara B. Crabb for the Western District of Wisconsin issued a strong, 43-page decision Friday declaring unconstitutional 26 U.S. C. § 107(2), passed by Congress in 1954. Quoting the Supreme Court, Crabb noted, “Every tax exemption constitutes subsidy.” The law allowed “ministers of the gospel” paid through a housing allowance to exclude that allowance from taxable income. Ministers may, for instance, use the untaxed income to purchase a home, and, in a practice known as “double dipping,” may then deduct interest paid on the mortgage and property taxes.

 “The Court’s decision does not evince hostility to religion — nor should it even seem controversial,” commented Richard L. Bolton, FFRF’s attorney in the case. “The Court has simply recognized the reality that a tax free housing allowance available only to ministers is a significant benefit from the government unconstitutionally provided on the basis of religion.”

 Crabb wrote: “Some might view a rule against preferential treatment as exhibiting hostility toward religion, but equality should never be mistaken for hostility. It is important to remember that the establishment clause protects the religious and nonreligious alike.”

 The benefit to clergy is huge — saving an estimated $2.3 billion in taxes in the years 2002-2007 alone, according to a statement by Congressman Jim Ramstad in 2002. Clergy are permitted to use the housing allowance not just for rent or mortgage, but for home improvements including swimming pools, maintenance and repairs. They may exempt from taxable income up to the fair market rental value of their home, particularly benefiting well-heeled pastors. The benefit extends to churches, which can pay clergy less, as tax-free salaries go further.

 The 1954 bill’s sponsor, Rep. Peter Mack, argued ministers should be rewarded for “carrying on such a courageous fight against this [godless and anti-religious world movement].”

 “I agree with plaintiffs that §107(2) does not have a secular purpose or effect,” wrote Crabb, adding that a reasonable observer would view it “as an endorsement of religion.”

Given the decades of Republican court stacking, I would expect this to be overturned on appeal, but I hope that it isn’t.

I do not know about the general makeup of the 7th circuit court of appeals, but if it does not get shut down at that level, it will be by the Supreme court.

H/t Cthulhu at the Stellar Parthenon BBS.

I Did Not Expect Harry Reid to Have the Stones to do This

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I said that I did not believe that Reid of the Democrats would ever invoke the nuclear option, no matter how awful the Republicans were.

I was wrong:

Senate Democrats took the dramatic step Thursday of eliminating filibusters for most nominations by presidents, a power play they said was necessary to fix a broken system but one that Republicans said will only rupture it further.

Democrats used a rare parliamentary move to change the rules so that federal judicial nominees and executive-office appointments can advance to confirmation votes by a simple majority of senators, rather than the 60-vote supermajority that has been the standard for nearly four decades.

The immediate rationale for the move was to allow the confirmation of three picks by President Obama to the U.S. Court of Appeals for the District of Columbia Circuit — the most recent examples of what Democrats have long considered unreasonably partisan obstruction by Republicans.

In the long term, the rule change represents a substantial power shift in a chamber that for more than two centuries has prided itself on affording more rights to the minority party than any other legislative body in the world. Now, a president whose party holds the majority in the Senate is virtually assured of having his nominees approved, with far less opportunity for political obstruction.

The main combatants Thursday were the chamber’s two chiefs, Majority Leader Harry M. Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), who have clashed for several years over Republican filibusters of Obama’s agenda and nominees.

Reid said the chamber “must evolve” beyond parliamentary roadblocks. “The American people believe the Senate is broken, and I believe the American people are right,” he said, adding: “It’s time to get the Senate working again.”

McConnell linked the rule change to the methods used to approve Obama’s health-care law solely with Democratic votes. The normally reserved GOP leader paced at his desk during his speech, often turning his back to Democrats to address only his fellow Republicans.

“It’s a sad day in the history of the Senate,” McConnell told reporters, calling the move a Democratic “power grab.”

The clash ended with a vote nearly as partisan as the times — 52 to 48, with all but three Democrats backing the move and every Republican opposing it.

I tend to think good riddance to the filibuster. 

It is an accident of history, and it has generally ill-served the American people.

Here’s hoping that it gets further dismantled as time goes on.

Once Again, Eric Arthur Blair* is Spinning in His Grave

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Guess what, the US Government is now saying that prisoners own memories of their torture are secret, and so cannot be revealed:

I’d missed this story when it came out a few weeks ago, but thanks to Rob Hyndman for calling it to my attention. There was plenty of press around the fact that one of the guys being held by US forces in Guantanamo, and who faces trial as one of the co-conspirators for 9/11, supposedly sustained head injuries while being held by the CIA. But, that’s just the tip of the iceberg of the story. Apparently Ammar al Baluchi, and some of the other prisoners are trying to argue that the US violated the UN Convention Against Torture with how they treated prisoners at the infamous black sites. But here’s the crazy part: the US is arguing that the prisoners’ own recollections of what was done to them cannot be used in court, because it would reveal classified information. Talk about adding insult to injury.

Worst Constitutional Law Professor ever.™

* George Orwell.

A Victory for Copyright Sanity

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Google wins an federal court ruling for Google Books:

Google’s idea to scan millions of books and make them searchable online seemed audacious when it was announced in 2004. But fast-forward to today, when people expect to find almost anything they want online, and the plan seems like an unsurprising and unavoidable part of today’s Internet.

So when a judge on Thursday dismissed a lawsuit that authors had filed against Google after countless delays, it had the whiff of inevitability. Even the judge, Denny Chin of the United States Court of Appeals for the Second Circuit, said during a September hearing on the case that his law clerks used Google Books for research.

“It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders,” Judge Chin wrote in his ruling. “Indeed, all society benefits.” (Judge Chin handled the case in district court because he was a judge there when it began.)

The Authors Guild said it disagreed with the decision and planned to appeal. Google said it was “delighted” with the outcome.

I’m delighted too.

Generally the courts look at any technological advance as an excuse to expand IP holder privileges, and in this case, the judge actually looked at societal benefit, which is the purpose of our IP regime under the Constitution.

This is an astonishingly useful research tool, and copyright does not mean that the holder can extract every possible dollar for every use.

There is an increasing realization in society that expansive IP privilege is a hindrance to the well being of the society, when it should be an asset.

Your Police State in Action

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Yes, the FBI is trying to suppress the activities of a Freedom of Information Act (FOIA) wielding activist because he might actually learn what is going on:

Ryan Shapiro has just wrapped up a talk at Boston’s Suffolk University Law School, and as usual he’s surrounded by a gaggle of admirers. The crowd­, consisting of law students, academics, and activist types, is here for a panel discussion on the Animal Enterprise Terrorism Act, a 2006 law targeting activists whose protest actions lead to a “loss of profits” for industry. Shapiro, a 37-year-old Ph.D. student at the Massachusetts Institute of Technology, contributed a slideshow of newspaper headlines, posters, and government documents from as far back as the 1800s depicting animal advocates as a threat to national security. Now audience members want to know more about his dissertation and the archives he’s using. But many have a personal request: Would Shapiro help them discover what’s in their FBI files?

 He is happy to oblige. According to the Justice Department, this tattooed activist-turned-academic is the FBI’s “most prolific” Freedom of Information Act requester—filing, during one period in 2011, upward of two documents requests a day. In the course of his doctoral work, which examines how the FBI monitors and investigates protesters, Shapiro has developed a novel, legal, and highly effective approach to mining the agency’s records. Which is why the government is petitioning the United States District Court in Washington, DC, to prevent the release of 350,000 pages of documents he’s after.

 Invoking a legal strategy that had its heyday during the Bush administration, the FBI claims that Shapiro’s multitudinous requests, taken together, constitute a “mosaic” of information whose release could “significantly and irreparably damage national security” and would have “significant deleterious effects” on the bureau’s “ongoing efforts to investigate and combat domestic terrorism.”

 ………

 When he started using privacy waivers, Shapiro realized he was on to something. Suppose you and I volunteered for the animal rights group PETA. If Shapiro requested all PETA-related FBI documents, he might get something back, but any references to us would be blacked out. If he requested documents related to us, he’d probably get nothing at all. But if he filed his PETA request along with privacy waivers signed by us, the FBI would be compelled to return all PETA documents that mention us—with the relevant details uncensored.

 ……….

 Armed with signed privacy waivers, he sent out a few experimental requests—he calls them “submarine pings”—and when the FBI returned more than 100 pages on a close friend, he knew he’d struck gold. The response included pages of information that Shapiro had requested previously, but that the FBI had claimed didn’t exist. Using case details from those documents and a handful of additional waivers, he filed a new set of requests.

The FBI wants a Seven Year Stay on his requests.

Remember also, we are not talking about al Quaeda, we are talking about animal rights activists, folks who have not only killed fewer fewer people than Osama’s bully boys, but they have also killed fewer people than the militia movement and the anti-abortion movement.

I’d really like to see him at the helm of a well funded non-profit to continue his work once that he is done with dissertation.

We desperately need to enshrine the Swedish concept of Offentlighetsprincipen (openness) in our constitution.

Here is a video of one of his talks.

What he shows, it appears that there are no real security issues, but any close examination of their techniques and focus is pathetic and embarrassing.

This is the most common Real reason for the state security apparatus for invoking secrecy.  It’s not about protecting us, it is about covering their own asses.

You Must Read This

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Digby explains how allowing torturers and over-aggressive prosecutors and cops to walk away from their crimes corrupts our entire society:

I think the rationale for this is the same one they use for failing to punish the CIA torturers — if we prosecute them they will be unwilling to take chances in the future and then criminals/terrorists will kill us all in our beds. This has always struck me as a fairly insulting indictment of public servants who take oaths to our constitution. It implies that unless they are given immunity in advance from any accountability they will refuse to do their job to protect and serve. And frankly, I don’t think that’s fair to them. Indeed, what’s happened is the opposite: there’s no advantage to being a straight arrow and following the rules so the incentives go the other way.

This is a sickness throughout our culture. Government authorities at all levels, from the cops who overuse the taser because they know there will be no ramifications if their torture leaves no mark to the top Justice Department torture advocates who are now feted as “experts” and heroes, there is little accountability. And it tars all the ones who do follow the rules of the constitution and just plain human decency with the same taint.

Read the whole thing.

Petition to Arrest Teabagger Reps is Both Stupid and Unconstitutional………

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It’s been floating around the internet for a few days, and it is wrong on every level.

First, criminal charging your opponents for being your opponents is wrong.

We have hundreds of years of history to document that.

And then there is Congressional immunity, which guaranteed freedom from criminal or civil liability for official actions of Congress critters, no matter how mind boggling stupid those actions are.

Done with rant.

What a Surprise, the New York Bank of the Federal Reserve is Completely Captured by the Vampire Squid*

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Case in point, we have a bank examiner fired by the NY Fed because she refused to ignore the law to help Goldman Sachs:

In the spring of 2012, a senior examiner with the Federal Reserve Bank of New York determined that Goldman Sachs had a problem.

Under a Fed mandate, the investment banking behemoth was expected to have a company-wide policy to address conflicts of interest in how its phalanxes of dealmakers handled clients. Although Goldman had a patchwork of policies, the examiner concluded that they fell short of the Fed’s requirements.

That finding by the examiner, Carmen Segarra, potentially had serious implications for Goldman, which was already under fire for advising clients on both sides of several multibillion-dollar deals and allegedly putting the bank’s own interests above those of its customers. It could have led to closer scrutiny of Goldman by regulators or changes to its business practices.

Before she could formalize her findings, Segarra said, the senior New York Fed official who oversees Goldman pressured her to change them. When she refused, Segarra said she was called to a meeting where her bosses told her they no longer trusted her judgment. Her phone was confiscated, and security officers marched her out of the Fed’s fortress-like building in lower Manhattan, just 7 months after being hired.

“They wanted me to falsify my findings,” Segarra said in a recent interview, “and when I wouldn’t, they fired me.”

Today, Segarra filed a wrongful termination lawsuit against the New York Fed in federal court in Manhattan seeking reinstatement and damages. The case provides a detailed look at a key aspect of the post-2008 financial reforms: The work of Fed bank examiners sent to scrutinize the nation’s “Too Big to Fail” institutions.

Segarra does not allege that Goldman was involved in the Fed’s decision to fire her, and I’m inclined to agree.

The nature of regulatory capture is that the regulators do the bidding of those that they regulate without being asked.

The question is how we fix this.

*Alas, I cannot claim credit for the bon mot describing Goldman Sachs as a, “great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money.” This was coined by the great Matt Taibbi, in his article on the massive criminal conspiracy investment firm, The Great American Bubble Machine.

Least Surprising News of the Day

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Obama’s war on whistle-blowers and the press has been examined by former WaPo editor-in-chief Leonard Downie, Jr., and is described in his report as, “The most aggressive since Nixon.”

The administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration, when I was one of the editors involved in The Washington Post’s investigation of Watergate. The 30 experienced Washington journalists at a variety of news organizations whom I interviewed for this report could not remember any precedent.

The former counsel for the New York Times in the Pentagon Papers case is far less circumspect about this:

Since 2009, the Obama administration has prosecuted more people as whistleblowers under the 1917 Espionage Act than all former presidents combined, a fact often rehashed in journalistic circles. In some of those cases, officials seized journalists’ phone and email records to use in their investigation. James Goodale, who was The New York Times’ chief counsel during Pentagon Papers coverage, has told CJR that Obama’s aggressive crackdown on whistleblowers is “antediluvian, conservative, backwards. Worse than Nixon. He thinks that anyone who leaks is a spy! I mean, it’s cuckoo.”

There is a pathology in the White House about leaks, and considering the vehemence, it has to come from the top, and it has to be deeply felt.

Ironically, this attitude is probably causing more harm than good for the Obama administration, though I would argue that the damage to the idea freedom of the press as a counterweight to government excess is far greater.

This is why I call Barack Obama the worst constitutional law professor ever.