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Elaine Cassel
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About This Blog
City Pages Cover Story by Elaine Cassel
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| Thursday, January 29, 2004 |
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| So Now We Know--Child Prisoners in Guantanamo |
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After holding them prisoner for almost two years, the United States has released three "enemy combatants," boys ages 13 to 15, captured in Afghanistan and held in Guantanamo Bay, Cuba. Reluctantly, no doubt, Bush and Rumsfeld had to return the boys to Afghanistan, since they were no longer of any "intelligence" use to them. During their stay at the island camp, they were denied access to their families or attorneys.
The Administration's spin on their imprisonment goes to great lengths to make us think that the boys were at a fun camp, and not a prison camp. Illiterate, we are told, when they arrived at Guantanamo, they now can read at the fifth grade level. They learned to love American movies and cartoons. And they became proficient in soccer and bocce--a credit to the sensitivity of their captors to the need for cultural diversity. The boys were guarded by reservists who had "experience" dealing with juvenile delinquents. Given the state of juvenile justice in America, that does not inspire confidence that the boys, who were not charged with any crime, were treated with any degree of decency or humanity.
The worst that was reported about the actions that landed them in Cuba was that one of the boys had "tried" to gain "weapons" to fight against the U.S. Given the vagueness of the term weapon, and that even nail scissors are weapons in the eyes of the Transportation Security Administration, we probably don't want to know the "weapon" one of the three tired to access. One thing is certain--if it were a firearm, that boy would never have been released.
There is no way Americans will ever know the truth about these young men--or how they were treated. Thankfully, they are going "home." But what about the other 675 (that number is fifteen higher than the 660 we had been told were detained there). What we don't know about Guantanamo and its inmates should strike terror in the hearts of Americans. Sources have it that Kellogg Brown Root, of Halliburton fame, is continuing to build prison facilities on the Naval base.
Sounds like Gitmo is anything from temporary digs. Wonder who Bush and Rumsfeld have in mind to fill the empty beds? |
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# -- Posted 1/29/04; 7:19:50 PM
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| Tuesday, January 27, 2004 |
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| Judges Speak Out About Keeping the Law at Bay in Guantanamo |
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President Bush and Secretary of Defense Donald Rumsfeld's detention in Guantanamo Bay, Cuba of 660 boys and men captured by U.S. forces in Afghanistan continue to trouble many in the legal profession. Last week, military defense attorneys appointed to represent some of the prisoners scheduled to be tried (by military tribunals) complained that the rules of engagement in the courtroom could render them at risk of violating their state bar organizations' professional rules of conduct. For instance, the rules of the proceedings allow the government to listen in on attorney-client conversations and allow the military to keep some evidence secret from the men on trials.
Though military attorneys assure me that there is no conflict of interest, it is hard to imagine how being represented by a military attorney when being tried as an enemy combatant by the military can be anything akin to "effective" assistance of counsel. This is not the same as a military person being court-martialed for some on-base crime--these men are being charged with fighting against U.S. forces in Afghanistan.
This week, three former federal judges filed briefs with the U.S. Supreme Court, who has agreed to here whether or not the prisoners can even access federal courts. The judges are not arguing against the imprisonment, but in favor of judicial review of their detention. This is precisely the limit the Supreme Court has placed on its review. The federal courts in the District of Columbia ruled that because the men are in Cuba they are beyond the reach of the U.S. courts. Not so, say their lawyers, who point out that the lease between Cuba and the U.S. give the U.S. sovereignty over the base.
In addition to being exempt from federal court review, the Bush Administration claims that international law, rules of war, and the Geneva Conventions do not apply to these prisoners. They insist that the fence around Guantanamo does more than keep the prisoners in. It keeps the law out. That's a conclusions that the federal judges--and apparently some members of the Supreme Court--find unacceptable. The government's briefs are due in February and the Court will hear argument in the case in late spring. |
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# -- Posted 1/27/04; 7:48:17 AM
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| Friday, January 16, 2004 |
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| Supreme Court Sanctions Secret Arrests |
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The New York Times took a stand this week and roundly criticized the Supreme Court's refusal to hear an appeal by journalists and public interest law groups challenging the secret roundup and arrests of more than 1,000 Arab and Muslim non-citizens in the days immediately after September 11, 2001. They rightly note that in sanctioning secret arrests, the freedom of all Americans is diminished. For as Georgetown University Law Professor and author of Enemy Aliens keeps reminding us, what "they" do to immigrants they next do to "us."
In the days after the terrorist attacks, nearly 1,000 suspects, most of them Muslim men, were detained. A vast majority proved to have no connection to terrorism. Many were deported for immigration violations. The government released the names of the 129 who were accused of crimes, but it refused to identify the hundreds who were not charged.
The Center for National Security Studies and other groups sued under the Freedom of Information Act to learn their names and the circumstances of their arrests. The government invoked an exemption to the act. But the plaintiffs, backed by news organizations, including The New York Times, contended that the exemption did not apply because this sort of information was given out in ordinary police investigations. They argued that the public needs to monitor detentions to ensure that the government is not trampling on constitutional rights.
The trial court agreed, and ordered most names released. But an appeals court reversed that decision, 2 to 1. In dissent, Judge David Tatel warned that the court was ignoring the public's interest in knowing whether detainees' rights had been denied by "detaining them mainly because of their religion or ethnicity, holding them in custody for extended periods without charge, or preventing them from seeking or communicating with legal counsel."
The Supreme Court last week granted the appeal of American citizen Yaser Hamdi, held as an "enemy combatant" without charge or legal counsel. But the Court is picking and choosing its battles. It is not going to go head-to-head with the Bush Administration on every attack on civil liberties. For civil libertarians, the cases the Court does not take may say as much, or more, than the cases they do take and decide. Though we never know the reasons for the decisions not to grant appeals, the message this denial sends to the Bush administration is to proceed with the practice of secret arrests, imprisonments, and deportations.
Attorney General John Ashcroft says, if the prisoners want you to know who they are, let them pick up the phone and call you. If you have been in a federal prison lately, you will recognize the patent absurdity of that comment. Further, when the government makes these secret arrests, its thugs move the "detainees" all over the country, at random. no doubt to help maintain the secrecy and to generate more fear and hopelessness in their subjects.
Get used to it. These practices, now sanctioned by the court, may become the norm in the US in the near future. And it won't "just" be immigrants who will disappear. It will be you and me. Secretary of Homeland "Security" Tom Ridge tells Americans that they should have a "safety" plan. We all better have a plan for our friends and families to start looking for us when we disappear.
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# -- Posted 1/16/04; 6:54:33 AM
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| Tuesday, January 13, 2004 |
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| Fly, Fly Away |
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Now that Big Brother has a way to create a dossier on each and every one of us, flying a commercial airliner puts us at risk of being "persons of interest." Buy a ticket and there is a file with your name on it, to be used by our government, we are assured, only to "track terrorists." The information soon to be demanded of airlines will allow Big Brother to aggregate all other computer-based information about us.
Remember the Total Information Awareness (TIA) program that Admiral John Poindexter was drummed out of town for proposing? I have reported several times that the concept was alive and well in several iterations (among them, MATRIX, the interstate system that allows states to exchange criminal and other records). But TIA has morphed yet again.
When the Transportation Security Administration proposed its own version of TIA, CAPPS (Computer Assisted Passenger PreScreening Program), it wanted Delta Airlines to pilot the program. Delta got cold feet when privacy advocates urged a boycott of Delta. No other airline stepped up to take on the task, so the government has decided it will require the information or the airlines does not fly.
The Washington Post reported the government's plans to push ahead with the system, prepared to go into effect as early as February. Once the airlines hand over the information to Transportation Security Administration, the passenger (that will be you and me) will be coded by level of risk - from terrorist to Mother Teresa.
According to the Post, the system will collect travelers' full name, home address and telephone number, date of birth and travel itinerary. The information will be fed into large databases, such as Lexis-Nexis and Acxiom, that tap public records and commercial computer banks, such as shopping mailing lists, to verify that passengers are who they say they are. Once a passenger is identified, the system will compare that traveler against wanted criminals and suspected terrorists contained in other databases.
Supposedly the mass of information will make the intelligence more reliable--there may be more than one Elaine Cassel but not with my VISA account number and my cell phone. Wow, that's a relief.
The two-step process will result in a numerical and color score for each passenger. A "red" rating means a passenger will be prohibited from boarding. "Yellow" indicates that a passenger will receive additional scrutiny at the checkpoint and a "green" rating paves the way for a standard trip through security. Also factored into one's score will be intelligence about certain routes and airports where there might be higher-rated risks to security.
If you are lucky, the government might put you in its "trusted traveler" program. Wonder how you get on that list? Democrats, Independents, and Greens need not apply, nor anyone with an "Arab" sounding last name, that's for certain. Of course, we will never know which list we are on or how we got there, as the hallmark of this list, as with all things Bush, is secrecy, secrecy, secrecy.
But, before your fear of flying leads you to cancel that Caribbean vacation, note that Nuala O'Connor Kelly, the chief privacy officer at Homeland Security, promises that the government will, of course, impose "strict rules" about which agencies can use the passenger information and how it could be used.
There, now don't you feel better? Ao get on Orbitz, buy that cheap ticket, and fly away. You might get more than you bargained for, though. Perhaps a one-way ticket to Guantanamo, a military prison or, if you're one of the lucky ones, your local federal court where you can be charged with thinking "terrorist thoughts." That's a story for another day. |
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# -- Posted 1/13/04; 6:57:15 AM
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| Monday, January 12, 2004 |
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| Supreme Court Once Again Shows Its Independence |
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On Friday, January 9, the the Supreme Court announced that it will decide whether the Constitution authorizes President Bush to order the indefinite detention of U.S. citizens captured abroad allegedly fighting for terrorist groups.
In a brief order, the justices rebuffed repeated Bush administration requests to turn down the appeal of Yaser Esam Hamdi, a U.S.-born Saudi and alleged Taliban fighter who was taken into custody by U.S. forces in Afghanistan in late 2001. He has been held by the U.S. military without access to a lawyer or any other outside contact ever since. The Fourth U.S. Circuit Court of Appeals sitting in Richmond, Virginia had handed the Administration a big victory this year when it accepted the administration's view that the judicial branch should not second-guess the executive to consider military matters.
This was the second time in as many months that the high court showed its independence from the Bush Administration. In accepting the appeal of the Guantanamo Bay enemy combatants, the court rejected Solicitor General Theodore Olson's warning that what the President did with them was none of its business. Olson argued the same in the case of Hamdi, an American citizen picked up in Afghanistan where he is said to have been fighting with the Taliban.
The court's refusal to defer to the President indicates not necessarily a disagreement with the policy, but an assertion of its role in our three-branch system of government and its preogatiave to review acts of the legislative and executive branches to see if they comport with the law and the Constitution. The Court may well assert its right of review and defer to the practice as within the war-powers of the President.
A third terrorism-related case--that of American citizen Jose Padilla-- is also pending, the alleged "dirty bomb" conspirator who has also been held without a hearing or legal representation. Two weeks ago, the Second Circuit Court of Appeals, sitting in New York, ruled that the President had no authority to detain an American citizen absent an act of Congress.
This week, Olson let it be known that he would be seeking an expedited appeal of that decision, bypassing the opportunity for a full panel of the Second Circuit court to rehear the case. Since Hamdi and Padilla represent different issues--Hamdi, an American captured on a battlefield, Padilla an American captured in Chicago and originally detained only for questioning--the Court will likely take the Padilla case and maybe even consolidate it with the Hamdi case. |
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# -- Posted 1/12/04; 6:58:08 AM
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| Friday, January 9, 2004 |
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| Who's Winning the War on Civil Liberties? |
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On September 15, 2001, President Bush declared a “war” on “terror.” It will be, he said, “a conflict without battlefields or beachheads.” Actually there have been battlefields and beachheads. First in Afghanistan in 2001. Then, in 2003, the absence of weapons of mass destruction had Bush changing his tune on Iraq—it now was the latest front in the war. Within a few weeks after the September 11 attacks, another war was declared. It was a war on civil liberties fought, ostensibly, in aid of the war on terror. In order to win this ideological war with unconventional soldiers, the Bush Administration, led by Attorney General John Ashcroft, set out to change the laws so as to meet what it said was exigent demands for this war that would, in Bush’s words, last a long time.
Like the war on terror, the Bush Administration’s war on civil liberties was undertaken in the name of national security and in defense of “freedom.” The individual victims are diverse–Americans, legal aliens, illegal. Institutional victims include Muslim charities, organizations that support Palestinians, and activist mosques. The greater victim, however, is the Constitution and the rule of law. It can no longer be said that we have three strong, independent branches of government–the executive, the legislative, and the judicial. The founding fathers, of whom much is written these days, planned three co-equal branches of government precisely to deter the power of a despotic President. But rather than protect us from an over-zealous executive branch, the Congress and the courts are providing Bush important ammunition by way of legislation. Hundreds of new laws and regulations have come to pass, hundreds of old laws have been amended, and the most massive government reorganization since the New Deal put into place in the name of fighting “terror.” Many federal judges, including more than 150 Bush appointees who were picked because of their loyalty to the President and their likely tendency to side with him in legal battles, stand ready to thwart efforts to curtail the Administration’s efforts to slash civil liberties.
The Administration has done a great public relations job selling the fact that some freedoms must be sacrificed in the name of national security. From the day the war on terror was declared, Ashcroft has been labeling those who criticize his tactics as being soft on terrorism. The ultimate branding coup came with some staffer dreaming up the acronym “PATRIOT” for the law that makes a mockery of many constitutional protections. To be against the Patriot Act makes one, well, “un”patriotic. Some aspects of the war on civil liberties harkens back to a time during World War II when fear and claims of national protection led to the internment of Japanese American citizens. The rounding up of thousands of immigrants immediately after September 11 and the imprisonment of hundreds of them for lengthy periods of time recall a dark chapter in our country’s history, a chapter which, it is important to remember, was held to be perfectly legal by the U.S. Supreme Court.
The Supreme Court of the U.S., as of this writing, has yet to hear any legal challenges to the powers President Bush has asserted in the name of the war on terror or challenges to the Patriot Act. It has granted the appeal of some of the Guantanamo Bay prisoners who wish to challenge Bush’s detention of them through the ancient writ of habeas corpus. It has not yet announced if it will hear the appeal of American citizen Yaser Hamdi, held as an enemy combatant for almost two years without being charged with any offense and without access to an attorney. The full panel federal court of appeals for the Fourth Circuit (in Richmond, Virginia) said Bush could do as he pleased with Hamdi. The government will certainly appeal a recent federal appellate court ruling concerning American citizen Jose Padilla, who originally was detained as a material witness to a grand jury investigation and subsequently declared an enemy combatant and transferred to the same military brig with Hamdi. The Second Circuit Court of Appeals ruled in December that Padilla had to be released—that there was no basis in law for Bush’s detention of him and that the President can only act pursuant to law.
It is hard to say what the Supreme Court will do with the cases it hears. Justices Sandra Day O’Connor and Ruth Bader Ginsburg, virtual ideological opposites on the court, have joined moderate Justice Anthony Kennedy in making public statements that Americans may have to give up some liberties in order to secure freedom for ourselves, our children, and their children. Presciently, prior to September 11, Chief Justice William Rehnquist wrote a book about the powers of the president in a time of “war”–and those powers are virtually without limit or question and include suspension of the writ of habeas corpus (as was done by President Lincoln during the Civil War). The “great” writ, as it is called, is the basis for Padilla, Hamdi, and the Guantanamo Bay prisoners’ petitions for judicial review of their lawless detentions.
With a compliant, even complacent Congress, the Supreme Court is our only hope to win the war on civil liberties. Will it show its independence and vote with the law, or go with politics and hand big wins to the man they made President? In a few months, we will know. Now, we can only watch and wait |
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# -- Posted 1/9/04; 3:44:26 PM
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| Thursday, December 25, 2003 |
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| The World Is Too Much With Us |
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Never before have I felt that this day is so unlike Christmas. Sharing that thought with a friend on Christmas Eve, he asked why. I gave the reasons I had heard many proclaim: we had one less weekend to shop, Christmas falls on a Thursday, and we are all too busy with demands of jobs and families.
I think there is something else, he said. I think it is that there is so much wrong going on in the world and we know too much of it. He mentioned, of course, the war in Iraq, the earthquake in California, Mad Cow Disease,"orange alert," and the stranglehold that George Bush now seems to have on the electoral process in the U.S. and on world events.
I added a few random worries of my own that made it difficult for me to feel the promised joy of the season: how I had prayed, in my own way, that the jury in Chesapeake, Virginia would spare the life of Lee Boyd Malvo and how relieved I was yesterday to hear that it had.
But that Christmas gratitude was shattered by news yesterday, Christmas Eve, that the prosecutor that got the death penalty for John Allen Muhammad might prosecute Malvo in his jurisdiction so as to get the death penalty. And how other jurisdictions were aching to have the kid in their state so they might get to load the syringe. And, of course, chief proponent of the death penalty in this country, our hate-filled Attorney General John Ashcroft, will do all that he can to see that Malvo is transported all over the country until someone does manage to execute him.
I then thought of our born-again Christian President, who spoke last week of his blood lust for the life of Saddam Hussein. Because he was such an evil man, and tried to kill his Daddy, you know. He ought to die. It is only right and just. Right and just?
I thought of the evil Tom DeLay and all he is doing to insure that there is no longer a democratic process in Texas or elsewhere—to insure that lines are drawn so that Republicans can rule the country. And how the Justice Department approved that Texas redistricting plan last week. So much for any one who is not a Republican having a say in the governing of the state of Texas. Other states, maybe all of them, will soon follow, as DeLay, Frist, Rove, Bush, and Ashcroft march on with their plan to create a public beholden to them and Halliburton and the Carlyle Group.
I thought of how Halliburton is charging us, the taxpayers, outrageous fees for importing oil to occupied Iraq and how there is not a damn thing we can do about it. I am saddened by the gut-wrenching feeling shared by many that this war was about Bush and Co. greed, and not at all about the people of Iraq. Let alone the people of the U.S.
I thought of the joke of the Medicare “reform” bill and how almost no one has read it—let alone the legislators who voted for it. How there will not likely be any Medicare for me, in a few years. How helpless the electorate will be when they find out years hence that they sat idly by watching their elected representatives sell what little security they had to the insurance companies and the HMO’s, thanks to Bill Frist. Frist, by the way, counts that bill as one of his grand accomplishments. And well he should. But it benefits him and his big-money constituents, not you and me.
I could go on and on with the things that weigh on my mind daily. Of 650 prisoners in cages in Guantanamo Bay, Cuba whom our country imprisons because it can. Because no one can hold them accountable. Because the most powerful country in the world is among the most evil and no one dare cross it. They all have too much they want of the bounty handed out to the “friends” of the U.S. There is no country that can stand on principle anymore, when the U.S. holds all the cards.
I think of the prisoners on death row—innocent and guilty—whose blood all Americans will have on their hands because of our death-hungry criminal justice system. Avenge killings with killings, in spite of legions of studies that show it has no correctional value. But in a system devoted to power and revenge, rather than justice and societal good, death most assuredly adds value.
I think of the constant mantra that Bush and our “leaders” spout about this being a great Christian nation. How Christianity is woven into the very fabric of what it means to be American. Yet, I defy you to name one example from the past year when Bush, Rumsfeld, Rice, Rove, Ashcroft, DeLay, Frist, or anyone in a seat of power in this allegedly great nation, has done one act demanded by Jesus in his Gospels. “Love your enemies, do good to them that wish you evil.” “Let him who is without sin among you cast the first stone.” I could recite maxims from the teachings of Jesus for hours and find no hint of the living of it by anyone in the Bush administration.
We are, I believe, among countries, the least Christian, the least decent, the least compassionate, the least kind government on the globe. Nowhere else can I think of does greed, power, corruption, vengeance, bigotry, and hatred more rule the day under the guise of Christianity and democracy than in the United States. Other nations with “Christian” traditions, like Germany, France, Italy, and England, at least have basic health care for their people and abhor the death penalty.
The words of William Wordsworth cry out:
“The world is too much with us; late and soon,
Getting and spending, we lay waste our powers;
Little we see in Nature that is ours;
We have given our hearts away, a sordid boon!
This Sea that bares her bosom to the moon,
The winds that will be howling at all hours,
And are up-gathered now like sleeping flowers,
For this, for everything, we are out of tune;
It moves us not.--Great God! I'd rather be
A Pagan suckled in a creed outworn;
So might I, standing on this pleasant lea,
Have glimpses that would make me less forlorn;
Have sight of Proteus rising from the sea;
Or hear old Triton blow his wreathed horn.”
Better that we profess our evil, as do governments like those of Korea and China, and govern and rule honestly as despots, than that we hide under the guise of Christianity and democracy.
So, Bah humbug on the Bush administration and all the evil it has perpetuated on the world this year. Someday may the spirit of Christmas find them.
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# -- Posted 12/25/03; 12:39:18 AM
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| Wednesday, December 24, 2003 |
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| How a Weak Insanity Defense Saved Lee Boyd Malvo's Life |
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On December 18, a Virginia jury convicted 18-year-old “Beltway Sniper” Lee Boyd Malvo of terrorism and capital murder. The convictions rendered Malvo eligible for Virginia's death penalty.
By convicting Malvo, the jury rejected his insanity defense -- causing some to wonder why his attorneys had raised it in the first place. After all, the evidence of insanity was thin, and the defense was, at best, a long shot.
Malvo's attorneys were still smart to raise the defense on his behalf. Even a longshot is better than no chance at all. And by raising the insanity defense during trial, Malvo's attorneys made it more likely that at the penalty phase jurors would spare him from execution--and they did. For on December 23, they agreed that he should spend the rest of his life in prison rahter than face lethal injection.
Why Malvo's Insanity Defense Was Tenuous At Best
Under Virginia law, the jurors evaluating Malvo's insanity defense had to decide if he was suffering from a "mental disease or defect" that would render him not legally responsible for the killing. Defense psychologists testified he suffered from a dissociative disorder. But that a tenuous diagnosis on which to hang an insanity defense.
The “best” insanity defenses are found in cases where the defendants are (or were, at the time of the crime) suffering from a psychotic disorder, such as schizophrenia. "Psychosis” means a break with reality. People with schizophrenia suffer from delusional thinking, such as grandiose or paranoid thoughts.
Consider, for example, Russell Weston, who more than five years ago stormed the U.S. Capitol building and killed two Capitol Hill police officers. Weston thought he was on a mission to seize a “ruby red satellite box” stored in the “great safe in the Capitol." Retrieving the box, he believed, would save the world from cannibalism. Before he left for D.C., Weston heard voices speaking to him from his parents’ cable television box -- voices so disturbing that he ripped the box out of the wall.
Many jurors come to conclude that crimes by psychotic culprits like Weston should result in hospitalization, not jail. But it is hard to convince them to reach the same conclusion when the defendant is instead suffering from a dissociative disorder, as defense psychologists say Malvo was.
A person with dissociative disorder can seem entirely sane. Consider Malvo. His thinking is not delusional, and he does not claim that he was hearing voices. The evidence shows that he methodically planned the killings with his father-figure John Allen Muhammad. It is a safe bet that the jurors did not “see” a mentally ill defendant who should be relieved of criminal responsibility.
Indeed, the symptoms of dissociative disorder can make a defendant seem especially culpable -- cold-blooded and calculating. That's because a majority symptom is a disconnect between action and thought. It is a form of “detachment,” or, in Malvo’s words, “zoning out.”
Jurors were likely horrified when Malvo described his heinous crimes calmly and without emotion. From a psychologist's perspective, however, that is only testament to his insanity. A sane person would feel emotion; Malvo did not.
Jurors, however, have great difficulty accepting that extreme dissociation can be a form of insanity. In part, this may be because unlike psychosis, dissociation -- "zoning out" -- is something jurors themselves have experienced. A mental trick as pedestrian as trying to pretend one is elsewhere, while at the dentist, counts as an extremely mild form of dissociation.
More than this, one need not be insane to exhibit dissociation, and indeed, sometimes it can aid survival. People facing extreme dangers -- such as death by freezing when stranded on a mountain-climbing expedition, or being stranded in the ocean after a boat capsizes -- report detaching their minds from their physical suffering in order to concentrate on staying alive. Similarly, people who suffer from posttraumatic stress disorder often experience dissociation in a way that protects them from fully realizing the horror of the trauma that haunts them.
If Malvo's dissociative disorder had been far more extreme, jurors might have recognized it as insanity. For instance, survivors of severe childhood abuse may develop multiple personalities that protect them from making the horrible experiences fully a part of their lives. This disorder, which used to be called multiple personality disorder, is now known as dissociative identity disorder (DID). But Malvo's disorder did not manifest itself that way.
For all these reasons, Malvo's invocation of Virginia's insanity defense, though grounded in plausible expert testimony, was very unlikely to succeed -- and it did not. Raising it, however, may have greatly helped Malvo's attorneys make the case that he should not sentenced to be executed -- as his father-figure John Allen Muhammad has been.
Why Raising Even An Unsuccessful Insanity Defense Can Help Avoid the Death Penalty
Granted, the defense may have lost credibility with some jurors when the prosecution ridiculed Malvo's insanity defense, and conducted blistering cross-examination of defense experts who supported it. But on the whole, the defense benefited, in the penalty phase, from raising the insanity defense at the guilt phase. To see why, consider what the trial would have looked like if such a defense had not been raised -- and what it actually did look like.
Had the insanity defense not been raised, the trial would have been over with in short order, for it would only have involved the prosecution's establishing the facts of the crimes. Jurors would have dwelt on the heinousness of the crimes, and the terrible harm they caused the victims' friends and families -- and these factors would have been foremost in their mind up until they reached their verdict. By then, the jurors might well have hardened themselves against Malvo irrevocably.
Once the insanity defense was raised, however, the jurors were forced to confront the reality of Malvo's life. Defense attorneys were able to stress his youth -- even now, he is only 18 years old -- and impressionability. They were able to show that a conniving father figure who -- whether or not he actually “brainwashed” him -- plainly had an overwhelmingly strong, incredibly pernicious influence took in Malvo. And they were able to show, with the help of the testimony of psychiatric experts-- as well as former friends, neighbors, and teachers testified -- that it was under, and largely because of Muhammad's influence, that Malvo became increasingly dissociated from reality as he entered the world Muhammad had constructed for them, a world in which virtually every move made, every breath taken, and every morsel eaten was controlled by Muhammad.
After hearing the defense's evidence, even jurors who did not conclude that Malvo was insane under Virginia law might have believed that he was mentally ill, just not sick enough to be absolved of responsibility. An insanity verdict is, after all, not a mental health diagnosis, but a legal construct reserved for defendants unable, because of a mental disease or defect, to know right from wrong and to conform their conduct in accordance with law. Because the insanity defense was raised, Malvo's attorneys were given a chance to have experts explain to the jury why what looked like callousness, could instead be dissociation, and what looked like evil, could be mental illness, even if not an illness sufficient to qualify as legal “insanity.”
This evidence might have convinced even a juror who did not want to be a holdout at the guilt phase, to become a holdout at the penalty phase -- a holdout against death. And since all it takes is one, if the defense reached a single juror, that one might have saved Malvo's life.
This is a tragic case -- tragic for the victims, and for Malvo, as well. In raising the insanity defense, Malvo's attorneys had nothing at all to lose—and everything to gain. The defense gambled and won and spared the life of an 18-year-old boy whom adults have otherwise grievously failed. |
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# -- Posted 12/24/03; 7:25:49 AM
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| Sunday, December 21, 2003 |
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| Stealth Legislation, Secret Police |
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In January 2003, the Center for Public Intergrity posted on its website a revolting draft piece of legislation that became known as Patriot II. Though the Justice Department did its best to disown it, saying it was just a "trial balloon" put out there for public debate and no more than a rough draft, experts weren't buying that line. It appeared that Vice President Dick Cheney had signed off on it, and try as they might legal scholars couldn't see the draft in this draft. As Georgetown University Law School Professor and Civil Liberties scholar David Cole noted, there wasn't a dangling participle or misspelling in the entire bill. Too strong for even members of the Congress, it died a quiet death.
But watchers of this Administration knew that the provisions would somehow become law. I predicted that portions would be stuck here and there in unrelated laws and spending bills, and given this Congress's loathing of reading legislation before they sign it, it would indeed become law without anyone but the stealth drafters knowing it.
I hate to be right about such things, but a reader brought to my attention the following bad news, as reported in Wired. An intelligence spending bill grants new huge powers to the FBI and the CIA to order searches and seizures without judical warrants or oversight and to keep the fruits of the intelligence a secret from the courts and Congress. It looks to me like the Secret Police, the Gestapo, whatever you want to call it, has indeed come to pass.
Congress Expands FBI Spying Power
By Ryan Singel
Congress approved a bill on Friday that expands the reach of the Patriot Act, reduces oversight of the FBI and intelligence agencies and, according to critics, shifts the balance of power away from the legislature and the courts.
A provision of an intelligence spending bill will expand the power of the FBI to subpoena business documents and transactions from a broader range of businesses -- everything from libraries to travel agencies to eBay -- without first seeking approval from a judge.
Under the Patriot Act, the FBI can acquire bank records and Internet or phone logs simply by issuing itself a so-called national security letter saying the records are relevant to an investigation into terrorism. The FBI doesn't need to show probable cause or consult a judge. What's more, the target institution is issued a gag order and kept from revealing the subpoena's existence to anyone, including the subject of the investigation.
The new provision in the spending bill redefines the meaning of"financial institution" and "financial transaction." The wider definition explicitly includes insurance companies, real estate agents, the U.S. Postal Service, travel agencies, casinos, pawn shops, ISPs, car dealers and any other business whose "cash transactions have a high degree of usefulness in criminal, tax or regulatory matters."
Justice Department officials tried earlier this year to write a bill to expand the Patriot Act. A draft -- dubbed Patriot II -- was leaked and caused such an uproar that Justice officials backed down. The new provision inserts one of the most controversial aspects of Patriot II into the spending bill.
Intelligence spending bills are considered sensitive, so they areusually drafted in secret and approved without debate or public comment.
Chris Schroeder, a Duke law professor and former assistant attorney general in the office of legal counsel at the Justice Department, said the re- insertion shows that "people who want to expand the powers of the FBI didn't want to stop after Patriot II was leaked."
"They are going to insert these provisions on a stealth basis,"Schroeder said. "It's insidious."
James X. Dempsey, executive director of the Center for Democracy and Technology, echoed Shroeder's analysis. "On its face, it's a cryptic and seemingly innocuous amendment," Dempsey said. "It wasn't until after it passed both houses that we saw it. The FBI and CIA like to try to graft things like this into intelligence bills."
House Intelligence Committee chairman Porter Goss (R-Florida) defended the new definition, saying it was necessary to keep pace with terrorists and the changing economy.
"This provision brings the definition of 'financial institution' up todate with the reality of the financial industry," Goss said on the House floor. "This provision will allow those tracking terrorists and spies to 'follow the money' more effectively and thereby protect the people of the United States more effectively."
The expansion surprised many in Congress, including some members of the intelligence committees who recently began reconsidering the scope of the Patriot Act.
Timothy Edgar, legislative counsel for the American Civil LibertiesUnion, decried the expansion of an executive power that is not subject to judicial oversight.
"The more that checks and balances against government abuse are eroded, the greater that abuse," Edgar said. "We're going to regret these initiatives down the road."
National security letters, or NSLs, are among the most-usedantiterrorism powers, and are among the least-known or scrutinized. The Bush administration has pushed to expand their use. In the spring, it tried unsuccessfully to allow the CIA and the military the right to issue such subpoenas.
The FBI says it can't say how many times it has issued itself NSLsbecause of national security. A few weeks ago, civil liberties groups forced the Justice Department to release some of those records, but Justice handed over a six-page, blacked-out list.
Other portions of the funding bill eliminate annual reports to Congress on several controversial matters, such as foreign companies' involvement in the spread of weapons of mass destruction, the effectiveness of the intelligence community and antidrug efforts.
The bill also nixes reports on how many times national security letters are used to access individuals' credit reports.
After a joint committee reconciled the two versions of the bill, bothhouses had to vote to approve the compromise version, which is usually considered a formality. While Friday's Senate vote was a voice vote, on Thursday, 15
Republicans in the House broke ranks and voted against the entire intelligence-funding bill in protest of the national security provision.
The bill passed by a vote of 264 to 163.
Though debate was limited, a handful of representatives, including Butch Otter (R-Idaho), spoke out against the bill. "In our fight for our nation to make the world a safe place, we must not turn our backs on our own freedoms," Otter said. "Expanding the use of administrative subpoenas and threatening our system of checks and balances is a step in the wrong direction."
The ACLU's Edgar said he was surprised by the extent of the Republican defections. It shows how views in both parties have changed about granting unchecked antiterrorism powers.
Edgar also argued the extension may anger strong interest groups -- such as casinos, Realtors and travel agents -- who previously weren't part of the civil liberties debate.
"They had no idea this was coming," Edgar said. "This is going to help to continue to expand the list of people and organizations that are asking questions about civil liberties and Patriot Act powers."
Members of Congress who were upset by the provisions and the process that led to their passage may hold hearings on the matter early next year. Neither the chairman of the Senate Select Committee on Intelligence, Sen. Pat Roberts (R-Kansas) nor the ranking minority member, Sen. Jay Rockefeller (D-West Virginia), responded to requests for comment.
The FBI directed press calls to the Department of Justice, which didn't respond by press time.
The Justice Department has vigorously defended its use of the Patriot Act for both terrorist and nonterrorist investigations and set up a website to respond to its critics.
Here is what President Bush has to say about the legislation. Note that the repeated mantra of exclusive Executive branch authority, without congressional or judicial oversight
Statement on H.R. 2417
Statement by the President
Today, I have signed into law H.R. 2417, the "Intelligence Authorization Act for Fiscal Year 2004." The Act authorizes funding for United States intelligence activities, including activities in the war against terrorists of global reach.
Section 506A(c) of the National Security Act of 1947, as enacted by section 312(b) of the Act, purports to require the President to request that the Congress enact laws appropriating funding for a major intelligence system procurement in an amount set as a cost estimate by an entity subordinate to the President or to explain why the Presidentinstead requests amounts below those levels. Moreover, beginning with the submittal to the Congress of the President's budget for FY 2006, section 312(d)(2) of H.R. 2417 purports to condition the obligation or expenditure of funds for development or procurement of a major intelligence system on the President's compliance with the requirements of section 506A.
The executive branch shall construe these provisions in a manner consistent with the Constitution's commitment to the President of exclusive authority to submit for the consideration of the Congress such measures as the President judges necessary and expedient and tosupervise the unitary executive branch, and to withhold information the disclosure of which could impair the deliberative processes of the Executive or the performance of the Executive's constitutional duties.
Section 341(b) purports to require the Attorney General and the Director of Central Intelligence, acting through particular offices subordinate to them respectively, to establish certain policies and procedures relating to espionage prosecutions. The executive branch shall implement this provision in a manner consistent with the authority committed exclusively to the President by the Constitution to faithfully execute the laws and to supervise the unitary executive branch.
Similarly, sections 1102(a) and 1102(c) of the National Security Act, as enacted by section 341(a) of the Act, purport to mandate that the Director of Central Intelligence use or act through the Office of National Counterintelligence Executive to establish and implement an inspection process for all agencies and departments of the U.S. Government that handle classified information. The executive branch shall implement this provision in a manner consistent with the President's constitutional authority to supervise the unitary executive branch.
The executive branch shall construe and implement section 376 of the Act, relating to making available classified information to courts, in a manner consistent with the President's constitutional authority to classify and control access to information bearing on the national security and consistent with the statutory authority of the Attorney General for the conduct of litigation for the United States.
Many provisions of the Act, including section 106 and subtitle D of title III of the Act, seek to require the executive branch to furnish information to the Congress on various subjects. The executive branch shall construe the provisions in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.
The executive branch shall implement section 319 of the Act in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Fifth Amendment to the Constitution.
Section 502 purports to place restrictions on use of the U.S. ArmedForces and other personnel in certain operations. The executive branch shall construe the restrictions -in section 502 as advisory in nature, so that the provisions are consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.
Section 106 enacts by reference certain requirements set forth in the joint explanatory statement of the House-Senate committee of conference or in a classified annex. The executive branch continues to discourage this practice of enacting secret laws and encourages instead appropriate non-binding uses of classified schedules of authorizations, classified annexes to committee reports, and joint statements of managers that accompany the final legislation.
GEORGE W. BUSH
THE WHITE HOUSE,
December 13, 2003. |
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# -- Posted 12/21/03; 9:14:52 PM
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| Friday, December 19, 2003 |
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| Two Federal Courts Blast Bush and Rumsfeld |
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Thursday, December 18, brought some good news for those among us who thought the judicial branch of government was asleep. An independent judiciary is alive and well in two federal circuits--the Second Circuit (New York) and the Ninth Circuit (California). Both appeals courts rejected the Bush administration's claims that President Bush has unlimited power to trample the civil rights of Americans and prisoners in its control under the guise of fighting a global war on "terror."
The Second Circuit ruled in the case of Jose Padilla that President Bush wrongly ordered his detention as an enemy combatant. The opinion found that there was no legal basis for the presidential act; in fact, it found law to the contrary, the Non-Detention Act (18 U.S. Code, Sec. 4001 (1), that prohibits the military from detaining an American citizen without an Act of Congress. The law, enacted in 1971, repealed the 1950 Emergency Detentions Act, that empowered the Attorney General to detain, during an invasion, insurgency, or declared war, individuals whom the Attorney General thinks might commit sabotage (sounds a little like the Patriot Act, doesn't it?). As the court notes in its opinion, every Senator who voted for the Non-Detention Act did so because of the disgraceful internment of Japanese-American citizens during World War II.
The Court further found that Bush overstepped the Joint Resolution to wage war against terrorism, passed overwhelmingly by the Congress shortly after September 11. The government's attorneys argued that the resolution gave the President the power to detain persons in order to prevent future attacks of terrorism. The Court said that the plain language of the resolution did no such thing. It authorized action only against persons, states, or organizations that planned or participated in the September 11 attacks "in order to prevent future attacks." The judges ruled that this Joint Resolution in no way abrogates the Non-Detention Act.
Having found that there was no legal basis for Bush's order, the court gave Secretary of Defense Donald Rumsfeld, who has control over Padilla, 30 days to release him. In the interim, the court noted, federal prosecutors could again detain him as a material witness (the way he originally came to the attention of the court, as federal prosecutors in New York wanted to question him about a plot to detonate a "dirty" bomb), or charge him with a criminal offense and have him indicted in federal court.
The government may ask a full panel ("en banc") of the Second Circuit judges to rehear the case, a motion the court would likely grant given the gravity and unusual nature of the case. Depending on the outcome of such a review, either Padilla or the government could appeal the results to the U.S. Supreme Court.
The ruling is a great victory for Padilla's court-appointed lawyer, Donna Newman, who valiantly fought for Padilla for the 18 months after she lost contact with him. Judge Michael B. Mukasey had overruled her motion that he be released and not held as a material witness, but Mukasey ordered that Padilla had the right to counsel. The government would have none of that. Lawyers would interfere with their questioning of the "witness." Rather than play by the rules and allow him access to his lawyer, the government appealed to some higher up (Ashcroft? Rumsfeld? Bush?) to name Padilla an "enemy combatant." When Bush signed the order, the Pentagon sent officials to remove Padilla from the New York jail where he was being housed and incarcerate him in a navy brig in Charleston, South Carolina. Holding Padilla as a military prisoner was the basis of Newman's petition for habeas corpus, an ancient form of legal action that challenges the basis of one's detention by the government.
Taking Padilla (along with the other American enemy combatant, Yasir Hamdi) to Charleston revealed another plan, as well--that any protestations from pesky lawyers would be heard by the conservative Fourth Circuit Court of Appeals. The Second Circuit brushed aside this effort, finding that it had jurisdiction over Rumsfeld in this habeas corpus petition because Rumsfeld directed Padilla's removal from New York.
Out on the West coast, the Ninth Circuit Court of Appeals did not follow the lead of their brethren on the U.S. Court of Appeals for the District of Columbia. The D.C. court had ruled that Guantanamo prisoners have no right to ask a court to review their detention orders. The Supreme Court has agreed to hear the prisoners appeal from the D.C. court's ruling solely to determine if federal courts can entertain the claim of prisoners' of the U.S. in Guantanamo Bay, Cuba to challenge their petitions with a writ of habeas corpus.
The disingenuous protestations of the government notwithstanding (it argues that Guantanamo Bay Naval Base is part of the sovereign territory of Cuba, even though the lease with the Cuban government gives the U.S. sole civil and criminal jurisdiction over people and acts taking place within its 40-square-mile borders), the Ninth Circuit judges reasoned, "We simply cannot accept the government's position that the executive branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included . . . without permitting such prisoners recourse of any kind to any judicial forum," said the decision.
If the government files an appeal of the Ninth Circuit's ruling, the Supreme Court will likely consolidate the cases and hear argument on both in the Spring of 2004.
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# -- Posted 12/19/03; 5:39:37 AM
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