law
stcynic | June 16, 2006I have not yet addressed the Supreme Court's ruling in Hudson v Michigan, where the court essentially reversed itself on the question of no-knock warrants. It's a very odd decision in light of their previous rulings, particularly Wilson v Arkansas, which established that the requirement that police must announce themselves and identify themselves as police officers prior to serving a warrant is part of the 4th amendment's criteria for determining whether a search is reasonable or not. That was a unanimous ruling, written by the most conservative and the most consistently originalist member of…
stcynic | June 14, 2006The trial of Oriana Fallaci, charged in Italy with defaming Islam, began on Monday. Fallaci has said a lot of outrageous things, many of them in my view a bit too broad in her attacks on Islam (she bluntly declares that there is no such thing as a good Muslim), but there is nothing in them that should be illegal in any country. You cannot defame a religion, only an individual, and even then where it is a matter of one's opinion, her views should absolutely be protected as free speech. Italy is absolutely wrong to prosecute her for such a non-existent crime.
Having said that, one can only…
stcynic | June 14, 2006The trial of an Oklahoma judge accused of using a penis pump under his robe during trial has begun. Reports like this just can't be a mistake:
Thompson's longtime court clerk testified in his preliminary hearing that she saw the judge use a device called a "penis pump" during several trials, including the murder trial of a man accused of shaking a toddler to death. That case ended in a hung jury.
Thank you, he'll be here all week. Try the veal.
stcynic | June 13, 2006Jack Balkin gets it exactly right in this post about the Bush administration invoking the state secrets privilege without any attempt to justify it:
I do not mean to suggest that the state secrets privilege should not exist or that it does not have considerable value. Rather, the claim is that the government must do more than simply assert the privilege. The burden should rest on the government to make a fair showing about what elements it can and cannot disclose, and it should be required to assert the privilege in the way that is least destructive of the orderly determination of legal…
stcynic | June 13, 2006Now it appears that the NSA wants to mine date from sites like Myspace and Facebook. Frankly, I'm not really bothered by this. The more useless information they gather, the more impossible it is for such data mining to find anything useful. The more storage space and processing power they use up searching through vast databases of information like the fact that Mandy in Sioux City, Iowa likes Disturbed and is allergic to peaches, the less likely their surveillance is to do anything useful.
stcynic | June 11, 2006I'm sure you've all watched the little tempest in a teapot the last few days between Arlen Specter and Dick Cheney over the NSA's wiretapping and information gathering programs. For a few minutes, it actually looked as though Specter was going to try and support the constitutional notion of checks and balances and attempt some congressional oversight on the NSA programs. He was negotiating with Dick Cheney - okay, negotiating may be the wrong word....being told what was going to happen by Dick Cheney is more accurate - over what the administration would accept. The bottom line was that the…
stcynic | June 11, 2006Nat Hentof has a well written but frightening article about the Bush administration's constant invocation of the state secrets privilege to shut down any opportunity for the courts to examine the constitutionality of their actions. Sadly, the courts are so far going along with it. Most recently, a Federal district court in Virginia dismissed a case based on that privilege. As I've said before, the danger here is that it basically destroys the checks and balances built into our constitutional system and denies the right of the people to petition the government for redress of grievances.
stcynic | June 9, 2006This prompted quite a chuckle from me. An Agape Press article about a court ruling that a Christian prison ministry could not receive tax dollars without violating the establishment clause began with this:
Evidently it matters not that a well-known and highly successful prison ministry believes one of its premier programs is constitutional and well within the guidelines of the First Amendment, or that statistics bear out the effectiveness of the program.
You have to love the incredulous tone. Of course it matters not that the ministry thinks its program is constitutional; what matters is…
stcynic | June 8, 2006Via Radley Balko comes this example of paternalistic overreach from Chicago, where they've apparently already banned the sale of fois gras and now are proposing to ban the sale of french fries because - surprise, surprise - they're bad for you:
If the City Council can ban foie gras, a fatty liver delicacy that most Chicagoans have never tasted and cannot afford, why not ban a product that's known to cause obesity and heart disease? Chicago's most powerful alderman raised that question Wednesday, then began to answer it -- by thinking out loud.
Finance Committee Chairman Edward M. Burke (14th…
stcynic | June 6, 2006I must be really predictable in what I write about. For the second time this week, someone emailed me a link to an article that I already had open on my screen with the intention of writing about. This time it was Josh Claybourn of In the Agora (and a belated congratulations to Josh on his graduation from law school) and the article was this one from Orin Kerr discussing a recent ruling that found Justice Scalia and Justice Alito slightly at odds with one another. The case is Zedner v United States and it involved the Speedy Trial Act. Kerr writes:
For court watchers who aren't into the…
stcynic | June 2, 2006Not only do they want to know every single phone call you've ever made, they also want to know every single webpage you've ever visited:
The Justice Department is asking Internet companies to keep records on the Web-surfing activities of their customers to aid law enforcement, and may propose legislation to force them to do so.
The director of the Federal Bureau of Investigation, Robert S. Mueller III, and Attorney General Alberto R. Gonzales held a meeting in Washington last Friday where they offered a general proposal on record-keeping to a group of senior executives from Internet companies…
stcynic | June 2, 2006A Federal judge has refused a DOJ motion claiming that the courts cannot hear any suits against the ongoing NSA spy programs because such suits might damage national security. The judge ruled that the case can go on and she won't consider the defense motion until after at least the first hearing to determine whether a summary judgement will be issued. In other words, the judge is rejecting the administration's argument that the courts should refuse to rule without ever seeing the legal or factual circumstances. Bravo to Judge Anna Diggs Taylor.
stcynic | June 1, 2006And I mean the state of Washington, not Washington DC. Well, this time anyway. Next week their new law banning internet gambling goes into effect and anyone caught playing poker online could face penalties equivalent to those who are caught possessing child pornography. No, I'm not making that up, the penalties are the same. This law passed the state legislature with virtually no opposition (unanimously in the Senate and with 5 votes against it in the House), and now the state is lying to citizens and telling them that it won't really apply to them:
Although the head of the state Gambling…
stcynic | May 30, 2006As expected, the Bush administration is asking the courts to ignore possible violations of the constitution stemming from the NSA programs for tracking domestic and international calls without ever looking into the question.
The U.S. government has asked a pair of federal judges to dismiss legal challenges to the Bush administration's controversial domestic eavesdropping program, arguing any court action in the cases would jeopardize secrets in the ongoing "war on terror."...
In asking federal judges in Detroit and New York to throw out challenges to the eavesdropping, the Bush…
stcynic | May 30, 2006A California appeals court handed a huge victory to bloggers last week, ruling that from the standpoint of the law, bloggers are essentially the same as regular journalists and entitled to the same protections.
The three-judge panel in San Jose overturned a trial court's ruling last year that to protect its trade secrets, Apple was entitled to know the source of leaked data published online. The appeals court also ruled that a subpoena issued by Apple to obtain electronic communications and materials from an Internet service provider was unenforceable.
In its ruling, the appeals court said…
stcynic | May 29, 2006Akhil Amar, one of the very best constitutional scholars in the nation, has an essay at Slate about the controversy over the FBI's search of the office of a congressman in a criminal investigation. He says pretty much exactly what I've been saying since the day it happened, that the only problem with the search was procedural, not constitutional. The speech and debate clause, contrary to the assertions of Hastert and Pelosi, do not protect a legislator against arrest or against having their office searched as part of a felony investigation.
The procedural mistake the FBI made was in not…
stcynic | May 25, 2006The third circuit handed down a shocking ruling today in the case of Petruska v. Gannon University. The case involves what is known as the ministerial exception, a legal doctrine well established by court precedent that says that anti-discrimination law cannot be applied to churches. As today's ruling notes, the ministerial exception was created "to protect church autonomy and avoid entangling government in religious affairs." But in this case, the court applies that exception in an extremely narrow way that no other court has done. And to make things even stranger, the decision was written…
stcynic | May 24, 2006A newspaper in Alabama has this report on followers of Roy Moore running for the state Supreme Court in Alabama and loudly advocating his position that the states should be able to ignore any Federal court ruling that they disagree with:
The theme was sounded in an op-ed piece Parker wrote in The Birmingham News criticizing his colleagues for their ruling.
"Conservative judges today are on the front lines of the war against political correctness and judicial tyranny," he wrote. "State Supreme Court judges should not follow obviously wrong decisions simply because they are precedent."
The…
stcynic | May 23, 2006Jon Rowe and I have made something of an avocation out of criticizing David Barton, the pseudo-scholar darling of the religious right who has peddled lie after lie about the founding fathers. But after reading this column by Barton, I now see that his historical ignorance is matched by his legal ignorance. First of all, it's absurd for him to call himself an historian. He has absolutely no credentials in the field. Yes, he writes about history, but that is irrelevant. I write about biology, but I don't call myself a biologist. I write abou the law, but don't call myself an attorney. This is…
stcynic | May 22, 2006If there was any doubt that Bush envisions himself to have unlimited authority that cannot be challenged, this article should put that to rest. The ACLU, representing several citizens, has filed suit against the NSA's call tracking system and the government is arguing not only that they cannot challenge that program, but that no citizen has any right to challenge any allegedly anti-terrorist policy in court at all:
The Bush administration has urged a judge to dismiss a similar case, saying it threatens to divulge state secrets and jeopardize national security. The government argued in briefs…