Category: Justice

Federal Court Rules that Federal Reserve Cannot Be the Banksters Bitch Over Swipe Fees

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U.S. District Judge Richard Leon just ruled that the Federal Reserve’s rules on debit card swipe fees are too bank friendly and ignore the statutory requirements of Dodd-Frank:

The Federal Reserve disregarded Congress’s intent when deciding how much banks can charge merchants for debit-card transactions, a judge ruled, rejecting Dodd-Frank-imposed regulations governing “swipe” fees.

U.S. District Judge Richard Leon in Washington ruled today that the Fed didn’t have the authority to set a 21-cent cap on debit-card transactions. Leon said the rule, which has been in effect since October 2011, would remain in place pending new regulations or interim standards.

“The Board has clearly disregarded Congress’s statutory intent by inappropriately inflating all debit card transaction fees by billions of dollars and failing to provide merchants with multiple unaffiliated networks for each debit card transaction,” Leon said in his 58-page ruling.

The groups, in a lawsuit filed in November 2011, said merchants will be “substantially harmed” by the fees the Fed set under the Durbin Amendment, a provision of the Dodd-Frank legislation. The rule went into effect on Oct. 1, 2011.

“The board’s final rule permits banks to recover significantly more costs than permitted by the plain language of the Durbin Amendment and deprives plaintiffs of the benefits of the statute’s anti-exclusivity provisions,” the retailers argued in their complaint.

What?  The law is not friendly enough to the banks, and so the Fed draws up regulations ignoring the law? 

I am so (not) surprised.

Eric Holder Will Sue Texas Under the Voting Rights Act

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He has announced that he will sue Texas under section 3C of the voting rights act. Basically, the Supreme Court invalidated the old list that was incorporated into the law when it was first passed (Section 5 4), but section 3, which can be invoked on the basis of specific actions by a state, can also require preclearance on voting changes.

This has been invoked before, albeit briefly:

The Obama administration moved to retain some oversight of the way states conduct elections after the Supreme Court invalidated part of the landmark 1965 Voting Rights Act, setting up a new fight with Republican governors.

The legal strategy, announced by Attorney General Eric Holder Thursday, is directed initially at Texas’ voting procedures, but it promises to have much broader impact: The action in Texas, Mr. Holder said, “will not be our last.” Other states expected to receive Justice Department scrutiny include South Carolina, North Carolina and Alaska.

On Thursday, the Justice Department asked a panel of judges in San Antonio to order continued scrutiny of the state’s voting rules and operations, following the Supreme Court ruling in June that effectively nullified what had been a requirement for the state to seek federal approval of any changes.

In an announcement that drew strong criticism from Texas Gov. Rick Perry and Republicans in other states, the attorney general said the Justice Department would invoke a little-used section of the law as a replacement measure for the one the Supreme Court struck down.

In its decision, the court effectively voided Section 5 of the Voting Rights Act by ruling unconstitutional the formula the federal government used to identify jurisdictions that must receive its approval—a process called preclearance—before changing voting procedures.

Now, Mr. Holder said, the Justice Department will use Section 3 of the law to try to keep Texas subject to preclearance. Under Section 5, certain states and counties with a history of discrimination against minority voters couldn’t implement voting-rule changes without federal approval. Under Section 3, a court must first find evidence of intentional discrimination—a tougher test—before subjecting the jurisdiction to preclearance.

In the Texas case filed late Thursday, Justice Department lawyers are seeking a 10-year preclearance period.

In this case, the “tougher standard” is not so tough.

There was already a finding of fact by a court a few months ago (under the now defunct section 5) that Texas was engaged in discrimination.

I also think that discovery, when the DoJ computer forensics teams go through emails at the Texas state house, should be very interesting.

Props to Eric Holder. (I cannot believe that I just wrote that)

Hopper Wins

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Which is good.

If the networks had won, they would have tried to come up with a way to prevent people from going to the bathroom during the ads.

But the courts have affirmed the right for viewers to use ad skipping technologies:

A federal court decision Wednesday gave fresh support to a new technology that helps consumers avoid a basic irritant of television watching — the commercial.

Dish’s Hopper service, which automatically removes advertisements before consumers view recorded shows, is the latest technology to worry broadcasters. These companies have long reaped profits from a practice that is as old as the television itself — forcing viewers to watch ads before they can see the rest of a show.

But a growing slew of technology firms, from Amazon to Netflix, has roiled the industry by offering programs outside the traditional distribution channels that for years dictated what appeared on the living room television. For far less than what cable companies charge, these upstarts are giving consumers more control over what they watch and when they watch it, while enabling them to easily skip ads. Google, the owner of YouTube, became the latest to join this trend, unveiling a device on Wednesday that pumps online videos and other content directly into television sets.

Such innovations have raised questions about how many Americans are actually viewing commercials these days and cast a shadow over a basic way that television funds itself. Digital video recorders have become so common that many consumers fast-forward through ads. With Dish’s Hopper, people can watch shows free of commercials shortly after they are broadcast live.

Now that Hopper has received greater legal support, analysts expect cable companies, DVR providers and others who distribute television content to quickly offer similar services.

While the business fallout from this is unclear, if it had gone the other way, it would have been incredibly ugly for the end users.

I’m not reflexively supportive of technology, but the record in entertainment is clear:  Not only do innovations benefit the end user, it also creates new revenues for the content providers.

Silly Rabbit, Extradition is for Other Countries

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Robert Seldon Lady, the former CIA station chief in Rome, was arrested in Panama on an Italian warrant after he was convicted in absentia for kidnapping Hassan Mustafa Osama Nasr and sending him to Egypt to be tortured.

Less than 24 hours later, he was on his way back to the United States, free from any legal jeopardy:

Former CIA Milan station chief Robert Seldon Lady, who was convicted in Italy of kidnapping an Egyptian Muslim cleric and recently arrested in Panama, is headed back to the United States, a State Department spokeswoman said on Friday.

“It is my understanding that he is in fact either en route or back in the United States,” said Marie Harf, a State Department spokeswoman.

So he’ll probably never face trial for this.

In an interview, he invoked the good German defense:

He was quoted as telling Il Giornale newspaper in 2009 that he was not guilty and was carrying out orders from his superiors.

Just following orders. I thought that Nuremberg settled this matter. This is not supposed to be a valid defense.

But don’t worry, he has already suffered great punishment:

Also in that interview, he said he had wanted to stay in Italy but his retirement villa with vineyards had been seized to cover court costs.

Compare this to what is looking at Edward Snowden.

Note also the case of Posada Carriles, who blow up a civilian airliner, but lives in safety in the United States.

Worst Constitutional Law Professor Ever

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So, a judge rules that guards grabbing the genitals of Guantánamo prisoners who want to talk to their lawyers is interfering with their right to counsel, so they are appealing:

A federal appeals court is allowing Guantánamo guards to resume searching detainees’ genitals on their way to and from legal meetings while the Obama administration challenges a federal judge’s ruling that the searches unfairly impede attorney-client interaction.

 The order Wednesday by a three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit capped 24 hours of legal wrangling: The Justice Department asked a New York lawyer to let guards search her client’s genital area, the lawyer refused and the Southern Command’s top general joined the fray with a sworn declaration that a federal judge got it wrong.

 Groin searches aren’t intended to prevent legal meetings, said Southcom’s Marine Gen. John F. Kelly, noting that his Guantánamo soldiers similarly search captives meeting with Red Cross delegates.

 Past practice of shaking a captive’s trousers to see if “nails, shanks, ragged scraps of metal” fall out “posed an unacceptable risk to the safety and security of detainees and guards,” Kelly said.

 Last week, detainee lawyers persuaded U.S. District Judge Royce Lamberth that the invasive searches, adopted amid a widespread hunger strike, were discouraging some of Guantánamo’s 166 captives from voluntarily leaving their cells for meetings with their lawyers. Lamberth ordered the guards to stop it, and resume the practice of physically shaking the waistband of the pants of a prisoner to see if any contraband comes out.

 ………

 In his ruling last week, Lamberth concluded that the motivation for the searches was not to enhance security but to deter the detainees’ access to attorneys by implementing search procedures that are “religiously and culturally abhorrent” to devout Muslims.

 Lamberth’s ruling had sought to reset the search procedures to an era before Latif’s death. The judge noted that there was no proof that Latif hid the drugs in his genital area.

………

In London, detainee attorney Crider, who works for a non-profit law firm Reprieve, called the refusal to follow Lamberth’s order “contempt of court, pure and simple. Why is it suddenly essential for the government to grope my clients in a way that been off-limits for years?”

I’m beginning to think that the Bush/Cheney regime of overt lawlessness is preferable to the protestations by Obama and His Evil Minions™ that they “respect” the rule of law and due process.

Where is the outrage?

Former FISA Judge Criticizes the Court

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Well, now we have a retired FISA Court Judge saying this court has been reduced to a joke and a fraud:

A retired judge who once served on a secretive U.S. intelligence court said on Tuesday it should not be able to approve broad government data-gathering requests without hearing from outside parties who could warn of potential civil liberties concerns.

 Currently, the Foreign Intelligence Surveillance Court makes its decisions on government surveillance requests without hearing from anyone but U.S. Justice Department lawyers in its behind-closed-doors proceedings.

 James Robertson, a retired federal judge in Washington who served on the court for three years ending in 2005, said that if the court is required to approve broad data-collection programs, the judges should be able to hear from other parties.

 Speaking at a public meeting in Washington on privacy and civil liberties, he said the process would work better if some approximation of an adversarial system existed.

 “I submit this process needs an adversary,” he said.

 Robertson suggested the possible reforms during the public meeting held by the Privacy and Civil Liberties Oversight Board, a bipartisan government entity set up in 2004 to advise the White House on civil liberties concerns raised by intelligence gathering. He said the privacy board itself could possibly be a party in the intelligence court’s proceedings.

 The actions of the court have come under new scrutiny following the disclosure of previously secret telephone and internet surveillance programs conducted by the U.S. government.

 The British Guardian and the Washington Post newspapers disclosed the details of the data collection in June based on documents provided by Edward Snowden, the fugitive U.S. National Security Agency contractor believed to be holed up in Russia.

 Since the U.S. Congress amended the 1978 Foreign Intelligence Surveillance Act (FISA) in 2008, the court “now approves programmatic surveillance,” Robertson said, meaning it was acting more like a government agency than a court.

 “That’s not the bailiwick of judges,” he said. “Judges don’t make policy.”

 Robertson said that when he served on the court, the judges’ role was to decide whether to grant government requests for individual warrants, he said. Granting approval to entire programs is not a “judicial function,” he said.

(emphasis mine)

While he does say that he is not suggesting the law is being broken, this sort of talk from a judge about his court (with the possible exception of Antonin “Fat Tony” Scalia) is very rare.

Note also that he is not criticizing the judges, he is criticizing the role of the court under new laws.

Understanding just how vehement this seemingly mild speech is a bit like reading Nathanial Hawthorne,* he cannot express his outrage explicitly.  It is a circuitously oblique way to to express his views, but this is as befits a judge.

*The phrase, “Then, all was spoken!” refers to physical passion (probably sex) in The Scarlet Letter.

Live in Obedient Fear Citizen

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Remember that you are the bankster’s property, and the Bill of Rights never applies:

Jeff Olson, 40, is facing a potential 13-year jail sentence for perhaps the world’s most costly sidewalk art. A former aide to the U.S. Senator from Washington, Olson used water-soluble statements like “Stop big banks,” and “Stop Bank Blight.com” outside Bank of America branches last year to protest the company’s practices. He eventually gave up his protest but prosecutors later brought 13 charges against him. Now a judge has reportedly banned his attorney from “mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.” It appears someone associated with Bank of American could finally go to jail, but it will not by the bank officials in the financial scandal. It is the guy writing slogans in chalk in the sidewalk.

 I have long been critical of the degree to which American judges are now barring parties from making defenses and arguments before juries. These rulings often have an outcome determinative impact on trials. In this case, free speech was the motivation of Olson, but he will reportedly have to defend himself as just a guy who walked up and started drawing in front of this bank.

 Olson and his partner had been campaigning to get people to take their money out of the bank. This campaign led to a confrontation with Darell Freeman, vice president of Bank of America’s Global Corporate Security, who reportedly demanded action from local prosecutors. Olson stopped when contacted by the San Diego Gang Unit in 2012.

 Yet, the bank insisted the chalk caused $6,000 to clean up, a rather suspicious claim. These were slogans written on the sidewalk. Prosecutors hit him with 13 counts of misdemeanor vandalism charges and $13,000 in restitution to the City and to Bank of America.

(emphasis mine)

This has gone viral, and the response of the judge was swift, to put a gag order on all the participants for a f%$#ing misdemeanor:

As reported in a Thursday evening, June 27, BuzzFlash at Truthout update to the chilling San Diego (SD) city attorney prosecution of Jeff Olson, an SD Judge placed an unprecedented gag order on a misdemeanor trial — in particular muzzling Olson. But it also apparently included witnesses, the jury and others.

 Judge Howard Shore also chastised the Mayor of San Diego, Bob Filner. Filner apparently in the judge’s eyes had the temerity to call the trial of Olson a waste of time and taxpayer money. According to the San Diego Reader, Filner sent out a memorandum on June 20 that read in part:

This young man is being persecuted for thirteen counts of vandalism stemming from an expression of political protest that involved washable children’s chalk on a City sidewalk. It is alleged that he has no previous criminal record. If these assertions are correct, I believe this is a misuse and waste of taxpayer money. It could also be characterized as an abuse of power that infringes on First Amendment particularly when it is arbitrarily applied to some, but not all, similar speech.

Judge Shore, in essence, warned the mayor of San Diego, who happens to be a Democrat in a traditionally conservative city, to keep his comments to himself, and would likely have issued a gag order on the mayor if Judge Shore were able.

(Again emphasis mine)

Silly rabbit, free speech is for Banksters.

Fabulous!

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The Supreme Court ruled much of the Defense of Marriage Act (DOMA) unconstitutional, and also ruled that the bigoted ratf%$#s challenging a lower court had no standing to sue in support of the anti-gay Proposition 8 after the state of California threw in the towel.

Both of these rulings are less broad than I would like, there was no ruling on the constitutional right to gay marriage per se, just that the Federal government could not choose which marriages to determine which marriages are real, that this was up to the states, and the ruling on the H8 amendment (Proposition 8) was limited to the issue of standing.

I expect to see a Loving v. Virginia type ruling in the next decade, either legalizing gay marriage, or requiring all states to recognize gay marriages from other states.

By a 5-4 Vote, the Supreme Court Says, “Silly N*gg*rs, Votes Are For Whites!”

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The Supreme Court just castrated the Voting Rights Act:

Handing Congress an assignment with profound political risks, a divided Supreme Court on Tuesday struck down a key part of the historic 1965 Voting Rights Act and left it to Congress to try to salvage the law as the effective ban on racial bias at the polls that it has been for nearly five decades. It appears that the future of the Act’s core depends on members of Congress being willing to impose heavy new legal burdens on their own states.

Before the Court in Shelby County v. Holder (docket 12-96) were constitutional challenges to two of the main sections of the 1965 law; the Court nullified one and left the other formally intact but perhaps in deep peril, too. The dissenters complained that, without the invalidated part, the other will be “immobilized.”

If the full potential impact of the ruling does occur, what would mainly be left to authorize challenges to racial discrimination in voting would be other parts of the law not under review Tuesday, but those parts require a potentially time-consuming process of one lawsuit at a time, persuading a court to give a remedy that applies to one state or local government per case.

See also here.

BTW, less than 2 hours later, the Texas AG unleashed their minority voter suppression plan:

Just two hours after the Supreme Court reasoned that discrimination is not rampant enough in Southern states to warrant restrictions under the Voting Rights Act, Texas is already advancing a voter ID law and a redistricting map blocked last year for discriminating against black and Latino residents. Texas Attorney General Greg Abbott issued a statement declaring that both measures may go into effect immediately, now that there is no law stopping them from discriminating against minorities.

………

In the case of the new electoral map, a panel of federal judges found that “substantial surgery” was done to predominantly black districts, cutting off representatives’ offices from their strongest fundraising bases. Meanwhile, white Congress members’ districts were either preserved or “redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren.” The new map was also drawn in secret by white Republican representatives, without notifying their black and Latino peers. After the court blocked the map, the legislature approved small changes to appease Democratic lawmakers last week. Now that they are free to use the old maps, however, Gov. Rick Perry (R) could simply veto the new plan and use the more discriminatory maps.

The strict photo ID requirement blocked by the DOJ and a federal court would require Texans to show one of a very narrow list of acceptable photo IDs. Expired gun licenses from other states are considered valid, but Social Security cards and student IDs are not. If voters do not have an ID — as many minorities, seniors, and poor people do not — they must travel at their own expense, produce their birth certificate, and in many cases pay a fee to get an ID.

Thanks to the Supreme Court, the DOJ no longer has any power to block these laws, even with the backing of federal judges who found blatant discrimination. Under the remaining sections of the Voting Rights Act, individuals may sue to kill these measures, but only after they have gone into effect and disenfranchised countless Texans of color.

BTW, if you think that this sucks, I think that David Kaiser is right when he predicts a return to a property requirement for voting rights:

………

It occurred to me this morning that the solution to Republican electoral problems is, when you think about it, obvious, and a friend of mine from a red state pointed out that a Tea Party leader has already mused about it, back in the heady days of 2010. The solution, which has a rich tradition in western and US history, is a property qualification for voting. And what is rather shocking is that there does not seem to be anything in the Constitution to prevent it.

We are going to be seeing the teabaggers lobbying for this, the only question is which is the first state where this actually is formally submitted by a state legislator.  (My money is on it being Texasissippi)

The Supreme Court Makes the Same Ruling It Always Does on Affirmative Action

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It allows for continuing affirmative action, but they have ruled against the specific remedy.

That is the nickel tour of
Fisher v. UT Austin:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs. In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.” Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.” The Court in Fisher took pains to make clear exactly what this means: courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

They have been making this same decision since Bakke.

I expect this to continue, until affirmative action is effectively a dead issue.

Snowden Has Flown to Russia, Is Expected to Ask for Asylum in Ecuador

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I am not surprised.  Hong Kong is not a safe haven in the long term, and if he returns to the United States, he will be tortured through extended solitary confinement in an attempt to break him, as was done with Wen Ho Lee.

So he is in Moscow negotiating asylum with Ecuador:

Fugitive former US intelligence contractor Edward Snowden is due to fly out of Russia in the next few hours in a bid to seek asylum in Ecuador.

Reports suggest he will be on an early afternoon flight out of Moscow, heading first to the Cuban capital Havana.

Washington says it is urging countries in the “Western Hemisphere” not to let Mr Snowden enter their territory.

The US has charged him with espionage over leaked secret documents revealing US internet and phone surveillance.

In a series of rapidly moving developments on Sunday, Mr Snowden flew to Moscow from Hong Kong where he had been holed up since fleeing the US.

Once at Moscow’s Sheremetyevo Airport it is thought he was met by Ecuador’s ambassador to Moscow whose car was seen arriving by reporters.

On Sunday night it was unclear exactly where Mr Snowden was, but he was believed to be still at the airport.

BBC Moscow correspondent Daniel Sandford says it is being reported that he will fly first to Cuba and then to Venezuela before heading to Ecuador. The first plane scheduled to fly to Havana was due to leave Sheremetyevo at 14:05 Moscow time (10:05 GMT).

He will be trying to avoid any country that might arrest him on behalf of the US, our correspondent adds.

At this point, I expect that Obama is looking into ways of having Snowden whacked, and Glenn Greenwald might be on his latest kill list as well.

Once Again, Obama Invokes the 96 Year Old Espionage Act Yet Again

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Yes, this time Worst Constitutional Law Professor Ever™ is using the act, originally drafted to prohibit expressing anti-war sentiments, to pursue a leaker, in this case, go after Edward Snowden:

Federal prosecutors have filed a criminal complaint against Edward Snowden, the former National Security Agency contractor who leaked a trove of documents about top-secret surveillance programs, and the United States has asked Hong Kong to detain him on a provisional arrest warrant, according to U.S. officials.

 Snowden was charged with theft, “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person,” according to the complaint. The last two charges were brought under the 1917 Espionage Act.

Rolling Glenn Greenwald:

Prior to Barack Obama’s inauguration, there were a grand total of three prosecutions of leakers under the Espionage Act (including the prosecution of Dan Ellsberg by the Nixon DOJ). That’s because the statute is so broad that even the US government has largely refrained from using it. But during the Obama presidency, there are now seven such prosecutions: more than double the number under all prior US presidents combined. How can anyone justify that?

For a politician who tried to convince Americans to elect him based on repeated pledges of unprecedented transparency and specific vows to protect “noble” and “patriotic” whistleblowers, is this unparalleled assault on those who enable investigative journalism remotely defensible? Recall that the New Yorker’s Jane Mayer said recently that this oppressive climate created by the Obama presidency has brought investigative journalism to a “standstill”, while James Goodale, the General Counsel for the New York Times during its battles with the Nixon administration, wrote last month in that paper that “President Obama will surely pass President Richard Nixon as the worst president ever on issues of national security and press freedom.” Read what Mayer and Goodale wrote and ask yourself: is the Obama administration’s threat to the news-gathering process not a serious crisis at this point?

………

They haven’t learned anything from these disclosures that they didn’t already well know. The people who have learned things they didn’t already know are American citizens who have no connection to terrorism or foreign intelligence, as well as hundreds of millions of citizens around the world about whom the same is true. What they have learned is that the vast bulk of this surveillance apparatus is directed not at the Chinese or Russian governments or the Terrorists, but at them.

And that is precisely why the US government is so furious and will bring its full weight to bear against these disclosures. What has been “harmed” is not the national security of the US but the ability of its political leaders to work against their own citizens and citizens around the world in the dark, with zero transparency or real accountability. If anything is a crime, it’s that secret, unaccountable and deceitful behavior: not the shining of light on it.

(Emphasis Original)

He is correct.  The only potential “injury to the United States” (from the text of this law) is to subject the actions of the NSA, and the rest of the US state security apparatus to public discussions.

The terrorists already knew this, as it is clear from the approved leaks from the Obama administration made this clear to anyone with 2 working brain cells.

I wish that we had a less paranoid president with a greater devotion to openness and transparency.

Of course, Richard Nixon qualifies as less paranoid President with a greater devotion to openness and transparency, which just goes to show how far we have fallen as a society.

On the Other Hand, This Decision is a Good One

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The Supreme Court upheld the right of the FTC to sue to prevent brand name drug manufacturers to bribe generic drug manufactures to keep them out of the market:

This case is an antitrust challenge to an increasingly common practice in the pharmaceutical industry. Brand-name companies faced with generic competition pay the would-be competitor an amount of money to stay out of the market. The payment comes in the form of settling a dispute over the validity or infringement of the brand-name company’s patent. Because generic entry reduces drug prices, these “pay for delay” or “reverse payment” agreements are alleged to reduce competition and increase drug costs. The Federal Trade Commission sued drug companies over one such deal. The court of appeals rejected that claim, explaining that the brand name’s patent includes the right to exclude competitors.

Today, by a vote of five to three, the Supreme Court reversed and held that the claim can go forward. Justice Breyer wrote the Court’s opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Chief Justice Roberts dissented, joined by Justices Scalia and Thomas. Justice Alito was recused from the case.

While they did not rule that the payments were presumptively illegal, it does make such payments far more unlikely, since the right of review has been affirmed.

A Horriffic 5-4 Supreme Court Decision

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They just Eviscerated the 5th Amendment. They say that you cannot be forced to testify, but if you don’t, a prosecutor can use your silence against you:

Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial. If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

The Court had taken on the case of Salinas v. Texas to decide whether it violates the Fifth Amendment for prosecutors to use pre-arrest silence as evidence of guilt. But the Court did not reach that issue, since it said that one must say something that invokes the Amendment’s protection, or else it does not apply. Prosecutors’ use of the silence is then permitted, it ruled.

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Justices Samuel A. Alito, Jr., wrote. The Court rejected the argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Basically, if you are rich enough to have a lawyer, you can invoke that, but if you are too poor for one, then invoking the 5th Amendment in any way other than a specific and precise legalistic manner, it will be used against you.

Here is No Surprise

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In a lawsuit, Bank of America* has been accused of giving bonuses to staff for foreclosing on people:

Bank of America Corp. (BAC), the second-biggest U.S. lender, rewarded staff with cash bonuses and gift cards for meeting quotas tied to sending distressed homeowners into foreclosure, former employees said in court documents.

 Mortgage workers falsified records and were told to delay U.S. loan-assistance applications by requesting paperwork that the Charlotte, North Carolina-based bank had already received, according to statements from ex-employees filed last week in federal court in Boston. The lender improperly disqualified applicants to the Home Affordable Modification Program, or HAMP, according to a May 23 statement from Simone Gordon, a loss-mitigation specialist who left the company in 2012.

 “We were regularly drilled that it was our job to maximize fees for the bank by fostering and extending delay of the HAMP modification process by any means we could,” Gordon said. Managers instructed staff to “delay modifications by telling homeowners who called in that their documents were ‘under review,’ when in fact, there had been no review,” she said.

Bank of America, which has spent more than $45 billion to settle claims tied to its 2008 takeover of Countrywide Financial Corp., is being sued by homeowners who didn’t receive permanent loan modifications after making payments under trial programs, according to court papers. Statements from seven former loan employees were included in a filing last week as part of plaintiffs’ attempt to gain class-action status. The lender has denied the allegations.

(Emphasis mine)

Seriously, why we haven’t put banksters in jail, particularly, the former CEO of Countrywide, Angelo Mozilo, who created the mess that BoA is trying to sweep under the carpet?

Also, why did the Obama administration set up HAMP as a Petri dish for mortgage servicer abuses?†

*Full disclosure, it is my bank.
†Actually, we know why. Geithner‡ wanted to let the banksters to cheat homeowners so as to protect the bank.
‡Laying it all at Geithner’s feet is not completely fair, because as I often say, the Cossacks work for the Czar.