More Trends: Habeas

Terrorism, Bush Wars, Habeas over at Slate, here.

The writ has been suspended only four times in U.S. history; the last one was in 1941 in Hawaii right after the attack on Pearl Harbor, according to this brief.

The government's handling of al-Marri is an utter departure from historical practice. Noncitizens in the United States have constitutional rights, including the right to due process if they face criminal charges. When they're convicted, they routinely file habeas petitions, as they have for centuries. The Supreme Court explained all of this in a 2001 case, INS v. St. Cyr, in which the government wanted to deport an immigrant convicted of a crime without any judicial review. The court forbade that, saying that the constitution protects the rights of "all persons in the United States."

Read all about the just announced $2 million settlement here (hey, they can break into my house anytime) paying Brandon Mayfield, the Oregon lawyer wrongly jailed in connection with the 2004 Madrid bombings. This Bush administration is not as bad as the Nazis. They do pay when they muck up.

What, us torture? Read this from Newsweek.

And get more of Z's articles on these topics over at Usavoice, here, here and here.

Trends

Terrorism, Secrecy, Security

If you were wondering what the government thinks it is doing at the airport security counters then read this. Tom Goldstein is counsel of record on this newly-filed Reply Brief in the case of Gilmore v. Gonzales (No. 06-211; petition here, brief in opposition here). On the brief with him are Thomas Burke and Rochelle Wilcox of Davis Wright Tremaine, and James P. Harrison, an attorney in Sacramento. The case will be considered at the Justices' January 5 Conference. Hat tip, SCOTUSblog.

Death Penalty for Sex Crimes An Incentive to Kill here.

So, how is Your Prison Sex? Learn how its done here.

Being horny and drunk hazardous to health. How hazardous, here.

lawsuits of Michigan inmates Lorenzo Jones, John Walton and Timothy Williams were dismissed on such technicalities, rather than merits. One of the suits claimed discrimination, and the other two involved prison medical care, which a Free Press investigation has found to lack the most minimal standards.

Seven Million and counting. Can immigration keep up? What this?

Death in Prison

Reason over Hysteria Every Time. Just an opinion.

Book Review: Just Americans

Just Americans: How Japanese Americans Won a War at Home and Abroad—The Story of the 100th Battalion/442nd Regimental Combat Team in World War II (Robert Asahina, Penguin, Gotham Books 2006) (nb. I plan to review Soldier, General Colin Powell's new book, and Fiasco, by Tom Ricks next. Readers, please feel free to write comments as I would like these pages to be a place for the give and take of ideas).

The Japanese, like the American Indian, the African American, the Mexican American, the American Vietnamese, Chinese, and every other hyphenated-American nationality, possess a unique history. But the Japanese experience has been even more uncommon than others. The book, Just Americans, tells the story of that uncommonness. It makes an important contribution, not only because at least once in every passing year we honor Veterans who matter, but also because it is far too easy to forget that immigrants matter too. A lot.

Just Americans is the comprehensive guide to one ethnic group in particular, the Japanese. It tells a saga of the Japanese-American nissei, the sons (and daughters, but sons mostly are featured here) of immigrants who until relatively recently have unfortunately not mattered very much. This is to say that the immigrant cannot matter too much in a country which has been populated almost exclusively by immigrants, without whom we might still be eating buffalo meat and venison instead of the likes of baklava, spaghetti, cabbage, wieners, baguettes, bagels, sushi, pho-tai, and lemon grass chicken.

Historical perspective makes for a grand appertif, which is always essential. The idea of immigration at this moment in our history has come to be closely associated with the notion of “illegal.” We are at the brink of a massive immigration imbroglio at this very moment because of the recent uproar over the illegals. Viewed in isolation, past illegal migration has been no big deal and, in fact, industry has been heavily reliant on this source of labor in the past and American agribusiness still relies on it. But, unfortunately, our newfound fear of terrorism has caused this once-beneficent source of cheap labor and, most particularly, the way in which foreigners commonly arrive and depart and especially the ease with they do so, to be viewed with increasing suspicion. This is not the first time that immigrants have been viewed with boatloads of suspicion. This has, in turn, created a populist groundswell and a most well-deserved furor among the rank and file. The fury has its origins in many quarters. It is well deserved as a matter of fact, but mis-directed to the extent that it seeks to blame the immigrant, any immigrant.

First, allow that terrorism and the fear associated with it sells. It sells very much in the same way that sex does, with copious passion and verve. Patriotism and nationalism, sometimes called jingoism, are endless fonts of deeply rooted but increasingly irrelevant imagination running amok, and only add fuel to the fury. It does not help that the minimum wage is so low at this time and has not kept pace with inflation or the cost of living. What our economics does is to encourage immigrants to come to our shores by hook and by crook, and to work for these not-even-subsistence-level wages in America, and then to send this booty home, where it actually amounts to a small fortune. It is a sad commentary on reality that many, many people living in places near and far still survive on a dollar a day.

And, amidst all of this, Americans loudly complain that immigrants keep wages low, that immigrants take jobs away from ready, willing and able Americans, that the cheap labor hurts middle and lower America; the immigrant hogs all the low paying jobs and they also compete for scarce and dwindling social services with the the regular middle-class American.

Unions generally oppose the guest worker program proposal by President Bush that will not allow immigrants to apply for citizenship. The point is, however, that immigration, and those unfortunate immigrants who seek only a better life for themselves and to feed the ones they love by taking advantage of conditions over which they have absolutely no control have always been a ready-made target for politicians and social engineering types.

And so we have arguments like this one, which asserts that it is disingenuous to argue that, in the 2006 elections Arizona rejected enforcement when [as Mark Krikorian of the Center for Immigration Studies points out,] it approved ballot measures to deny bail to illegals, bar them from collecting punitive damages, keep them from receiving certain state subsidies, and make English the state's official language.

Most Americans believe illegal immigrants should be allowed to become guest workers and eventually U.S. citizens, but that Congress should do more to close the border to stop more illegals entering the country, according to a new poll conducted by Quinnipiac University. By a margin of 69 percent to 27 percent, American voters say illegal immigrants should be allowed into a guest worker program with the ability to work toward citizenship over a period of several years. Such a guest worker program has wide support among voters of all political stripes.
Immigration is a political issue. Congressional Democrats earlier this year supported President Bush's vision for a policy revamp, which included tightened border security, a guest worker program and a process to give millions of illegal immigrants legal status. After the GOP lost big in November, Rich Lowry (a conservative) writes,

“there is no good evidence that championing strict immigration enforcement was a loser for Republicans, or that voters elected Democrats explicitly to permit illegals already in this country to stay and to invite more of their brethren to come. Any suggestion otherwise comes from advocates of amnesty who interpret
anything voters do -- now up to and including expressing their discontent with
an unpopular war -- as a call for more immigration.”

Conclusion

The painting of politically expeditious bulls-eyes on immigration and immigrants does, unfortunately, conceal the nature of the true threat to our nation. That remains fighting anything and everything that threatens strong, pluralist, liberal democracy at home (and abroad). It is pollution of the air and of our waterways even more than terrorism, or Islamism.

We are not, surely, unable to secure our own international boundaries from the terrorists who would enter to do us harm but we have been unable to accomplish that aim as of today. Terrorism can also be home-grown. This means that questions of domestic tranquility are equally as important if not more than securing foreign borders from external threats.

Just Americans bravely shows how the Japanese instance of problems with immigration, when combined with questions of national security, was mistakenly handled in the past, and then required remedial political action. The book does more than that however, as it tells the military history of the European campaigns and stories of individual heroism: of conflicted emotions and loyalties as well as “relocation” “exclusion” and imprisonment at home. My favorite place to go for more information about books, and this one in particular, is Amazon.com (if I had the money I'd buy it. Say Jeff, what about a loaner program for prisoners? Wanna buy an ad here?).

Odds and Ends

Stink of MS still lingers...

Hard to Ignore Case of Police Brutality: here

More Prisons Not the Answer, Makes Sense Now, but we did not know back then,

The Texas Board of Pardons and Paroles recently came under fierce attack for denying parole to scores of low-risk offenders. Talk about boosting parole rates worries Dianne Clements, of the Houston-based victim advocacy group, Justice for All. "These influential lawmakers seem to be leading us to where we were 15 years ago, when we had a prison population that was a revolving door because we didn't have enough prison beds and parole boards had no alternative but to release people," she said. But Marc Levin, director of the Texas Public Policy Foundation's Center for Effective Justice, a conservative think tank, said the winds were shifting in Texas. "There's an alliance on both the right and the left. There's a consensus we need to do something besides build more prisons," he said.

Innocence Stuff

Global Warming? No Way!

In the ho-hum who-cares department:

1. CO2 emissions is not pollution? Fine. It matters not that if you fill your room with it you will die. Deadly, maybe. Poison, perhaps, but not a source of pollution. Only death.

Oh, but what about global warming?

2. EPA has no authority to regulate automobile CO2 emissions in America because, (a) it has no jurisdiction over CO2 as there can be no harm caused by something that is not a pollutant, and EPA jurisdiction is limited to harmful pollutants; (b) even if global warming is happening and is actually caused by CO2, which is a disputed fact in the govenment's view (the science is very "complex" to be precise), warming is not causing any harm, and (c) certainly there is no harm from the measley 6 percent of the total global CO2 emissions caused by American cars in any event, and (d) even if we took action emissions by other nations can't be stopped, so we might as well keep on polluting, and, I might add, we might as well be polluting as fast as we can.

Because then, after we've screwed up the ecological balance to the point that we know we did that for sure, and in other words we can be satisfied that it was not going to happen anyway which we can probably never know for sure, somebody will have to do something about it. But not us, because even if we do nobody else will have to. BTW, it is not only our coastline that is being lost due to non-harmful, non-human-being-caused, global non-warming not resulting in steadily rising sea levels.

3. Plaintiff's have not demonstrated any remediable injury, or standing.

Science seems to have shown already that the position of our government is wrong. We'll have to see if the court agrees.

My prediction? Justice Kennedy will side with science and standing. The other side, curiosly enough in this case just coincidentally happening to be on "the right" and "conservatives" (Roberts, Alito, Thomas, Scalia) and that determine to stick with "the law" must be called "formalists". Formally, the Titanic did not strike the iceberg. The iceberg struck the Titanic which only happened to be on an intersecting course.

The transcript of arguments in this case is available here. What do you think?

Yin and Yang

This blog can not ignore the conservative yin of the yang of being. In fact, conservatives are also exemplary thinkers and this will be recognized by my adding permanent links to the Cato Institute and the Federalist Society. It's only when they endeavor to put their thoughts into actions that they fall prey to their own good ideas.

Also, because "the climate," and stewardship of the planet earth's resources and its environment has become a critical issue of global proportions, I have added a token link to Climate.org in my new links section that I will be calling "Foundations." Anything less would mean consignment to oblivion. Do you recycle?

Buy an energy credit and help slow global warming, not to mention air pollution. You won't believe how many new cars the Chinese are putting on the road every day. It's almost as many as new coal-fired energy plants.

Telephone Justice III

I wonder who pays for these companies to litigate "every nook and cranny"? Yesterday, the Supreme Court heard oral argument in Bell Atlantic v. Twombly, a class action alleging illegal conspiracy to protect a monopoly in the markets for broadband and additional telephone markets. SCOTUSBLOG is the best place to go for more on this.

After years of litigation, the sole issue that made it to the Court was whether the plaintiff's allegations "stated a claim". Law school 101 just got a lot harder.

A monopoly is definitely worth preserving. But who pays?

MSM Shines On

Personally, I've started to tune out bs articles like this but some people get angry enough to comment. Here is a good one from this weekend found (where else?) on Sentencing Law and Policy.

"Who else quit reading and had to walk off the rage and disgust after reading this from "Tracking down sexual predators just in time"? With just four investigators, the CyberCrime Unit can't possibly probe the thousands of child pornographers on the Internet operating in Florida, but it tries to go after the worst of the worst. BABIES AND TODDLERS Horkan has an intense dislike for people who use babies and toddlers in pornography. ''Child pornography is not largely 16-year-olds. It is largely little girls or boys, toddlers. Tiny babies are being molested. They are actually being penetrated,'' she said.``Most people would vomit to see the stuff they have.'' Yes, they may literally vomit, but who else, after cooling off some, returned to the story and read this a further eight paragraphs down the page? About 90 percent of the sexual solicitations happened to children 13 and older. So is Alan Naj really the worst of the worst? The implication is strong. The fallacy of the part equals the whole is very effective and carries a powerful emotional punch right in the gut. But a second, more careful reading finds something else disturbing: Reporters embedded with the police are often misleading, as they were when they surrendered to the government while embedded with the troops. How many readers, in their rage and disgust, will stop to realize toddlers are not on the Internet at all and cannot be solicited? Conflating the two crimes, though both are serious public safety concerns, is not a sound basis for rational law. Such is the stuff of "moral panics" and irrational law, and irrational law is never best for public safety."

The article from the Miami Herald, "Tracking down sexual predators just in time" can be found here.

Heard on NPR, Maryland's Court of Appeals will soon begin to webcast its proceedings.

Fighting CPS? Here is some info for you.

Want to send a Christmas card to somebody in prison? Check this out.

if you know of a man or woman who would like to receive a christmas card, please send me their name & info. I will make a list and post it to the groups. Carol Leonard. Prison Reform is NOT soft on crime.

Food for Thought Post-TGiving

That all men are equal is a proposition which, at ordinary times, no sane individual has ever given his assent. Aldous Huxley

A man walked into a bar with his alligator and asked the bartender, "Do you serve lawyers here?". "Sure do," replied the bartender. "Good," said the man. "Give me a beer, and I'll have a lawyer for my 'gator."

Francis Fukyuyama, Professor of International Political Economy at the Nitze School of Advanced Internaional Studies at Johns Hopkins University wrote this almost two years ago:

“The Iraq war has isolated Washington in unprecedented ways and convinced a large part of the world that the United States—not Islamic terrorism—is the biggest threat to global security.”

Is America really not okay? Leaning too far to the right? Taking on too many characteristics of a police state in addition to an indifferently policing one? Reflect also on Professor Fritz Stern's discerning idea, something he calls the “pseudo-religious transfiguration of politics,” describing “Hitler's success in fusing racial dogma with Germanic Christianity,” and “the moral perils of mixing religion and politics.”

Are there hot headed change agents to blame if blame be found, or is this new-fangled American oppressiveness a development which is nobody's fault but simply the unavoidable result of circumstances beyond anybody's control? The acts of a few bad apples; to be blamed on “the terrorists”?

Rather, what if it was really a well planned assault by a cabal purveying a theory of the unitary executive which is both the result of a mistaken and naïve misreading of the U.S. Constitution, and a cause of the document being altered, indeed interpreted, in reactionary, autocratic and merely politically expedient ways? Now, one of this cabal is running the World Bank. So can a tiger change his stripes?

As the undisputed heavyweight world predator and bully is America going to avoid taking responsibility just because it can for violations and abuses of human rights for which it should be accountable whether they occur at home or abroad? The problem, assuming there is one, might well be the ponderous footprint, the inability to cover those tracks, the failure to recognize and cure the damages. Ever heard of the Inquisition? Star Chamber? Sir Walter Raleigh?

The lessons of history need not go unheeded.

Finally, after digesting the turkey, and hearing the venerated Honorable Messrs. Brzezinski and Kissinger debate this question, it is now very clear (to me at least) that what is needed in Iraq is a complete end to the world's perception of unilateral American involvement.

What is interesting is that the terms of the debate have not changed over the previous three years that the senior diplomats have been having this discussion. What has changed are events on the ground. That tells me that one has been proven correct, with the benefit of hindsight. The unilateralism v internationalism debate has been fought before. What is sad is that the lesson has yet to have taken hold.

My plan to accomplish this is simple: Authorize the U.N. to

(a) take all necessary action in the Middle East (nothing will get done and that is fine, being an improvement over what is going on now, which is only pushing things in the wrong direction and, when things finally do get done the decision will be made by "the people," democratically)

(b) to train Iraqi police, and

(c) precede this by the installation of a new representative to replace Mr. Bolton.

The Baker Commission must go the final mile to internationalize the issue. More bombs going off in the Middle East only aggravates the global warming problem among other things, and this must stop.

But so long as the bombings cannot be stopped, the least we can do to salvage our international reputation, as well as the safety of our young men and women and the nation itself, is to make an effort to be as far away removed as possible from ground zero. We can't fix it, and we must recognize this added "inconvenient truth."

Finally, as an afterthought, containment works.

SCOTUS, CURE AND Soros Updates

Slashdot has this interesting thread concerning Tuesday's patent case in the SCOTUS.

International CURE (Citizens United for Rehabilitation of Errants)announced that it will ressure Universal International and corporate print media to remove a wet bar of soap in advertising the newly-released movie, "Let's Go To Prison.""As most people know, a wet bar of soap is to convey the old joke about not bending down to pick up the soap when showering together with other prisoners," commented CURE's executive director, Charles Sullivan."But, prison rape is no joke. In fact, Congress with bi-partisan leadership and a public signing by President Bush passed the Prison Rape Elimination Act of 2003," Sullivan continued."This sixteen page bill establishes a standard of zero-tolerance and makes prevention a top priority," Sullivan explained. He is optimistic that the campaign will eventually be successful."By continuing to make fun of prisoner rape as a promotional gimmick to make big bucks turns back the clock to before the federal government overwhelmingly voted for this bill. Thus, we will not only be contacting Universal International and corporate print media to pull the ad, but also the Bush Administration and members of Congress."International CURE is a grassroots prison reform organization headquartered in Washington, DC, with state chapters in most states and 20,000 members throughout the world. Most of the members are families of prisoners, prisoners, and former prisoners. For more information, call 202-789-2126

From George Soros' Open Society Institute, this about Susan Koch, 2006 Soros grantee:

Susan Koch will complete and distribute Simple Justice, a documentary film that follows the case of Mario Rocha, now age 26, from his arrest and conviction through his nearly ten years of imprisonment. At age 16, Rocha, a young Latino man from East Los Angeles, was arrested and convicted of murder and attempted murder on the basis of one questionable eyewitness identification and no physical evidence. He was tried as an adult and sentenced to spend the rest of his life in prison. Viewers will witness firsthand the legal and justice issues involved in Rocha’s case, as well as the personal story of Rocha, his family, his community, and those who are working to overturn his wrongful conviction. While the film focuses on the case, it also paints a much larger picture of the American judicial system; through Rocha’s story, viewers will come away with a new and deeper understanding of the need to ensure each individual’s fundamental right to equal justice.

Koch, an Emmy and Peabody award-winning filmmaker, has produced, directed, and written documentaries and nonfiction programming for worldwide distribution and television broadcast. Her critically acclaimed film City at Peace premiered at the Kennedy Center in Washington, D.C., and Lincoln Center in New York City, and was broadcast on HBO. Koch’s work has appeared on ABC, NBC, HBO, PBS, MTV, The Discovery Channel, National Geographic, Turner Broadcasting, American Movie Classics, The Learning Channel, and the Travel Channel. She began her broadcasting career at WETA-TV, the public television station in Washington, D.C., and was a producer for Roger Mudd at NBC News. Koch has a BA with honors from Bryn Mawr College. She is on the board of the Women’s Commission for Refugee Women and Children and is a founding board member of Our Voices Together, an organization created by 9/11 families and friends to help build a safer, more compassionate world.

Great Blogs

Professor Douglas Berman's blog, Sentencing Law and Policy, which I have linked permanently on my site, is by far the best I've found. Today he features a conference at the New School in New York on the topic of Crime and Punishment, available here: [The invited speakers and the topics to be discussed (detailed here and here) are truly amazing. A detailed agenda can be found at this link,] This is a truly amazing line up of great thinkers and abstracts to guide you further, if that is what turns you on. This conference is happening next week in New York.

Also, Doug's permanent links to Criminal Law blogs provide more than enough for astute students of this topic (and legislative assistants) to begin to get their daily digest of must read stuff. Also, there is a reason that Doug has placed these links in the order that he has on his site.

Weekly Update: Due Process, First Amendment

The most important development in the week's news so far just might be this, from howappealing by Howard Bashman (link down and to the right on my sidebar). Thanks Howard!

Access online the D.C. Circuit's order granting rehearing en banc in the substantive due process access to experimental potentially life-saving drugs case: I obtained a copy of the D.C. Circuit 's order entered yesterday granting rehearing en banc in the case from that court's PACER system, and I have uploaded a copy of the order to this link. Posted at 10:25 AM Tuesday, 11/21, Howard Bashman.

And, so now I'm supposed to research down to the gnats *ss every time I use a fact that MIGHT be injurious and put it on my blog to make sure its not defamatory? But as one commenter at Volokh points out, "This [ruling] is not a victory for free speech, which was already protected; it is a victory for the perpetrators of libel and slander." Respectfully, I dissent. The original perpetrator remains liable, and unwitting bloggers should not be dragged into court, and should remain free of the undue burdens of hiring a lawyer to understand what defamation means. Thoughts, anybody?

Patriotism and Stuff

My Patriots, this one by Shaw is good, but I was born in Japan and instantaneously became an American citizen. Does anybody know of a cure?

Patriotism is the conviction that your country is superior to all others because you were born in it. George Bernard Shaw

A few more in the holiday frivolousness style...

The men the American public admire most extravagantly are the most daring liars; the men they detest most violently are those who try to tell them the truth.- HL Mencken

Every generation laughs at the old fashions, but follows religiously the new.-
Henry David Thoreau

And from NPR Morning Edition, November 23, 2006, but not frivolous ·

The number of people spending Thanksgiving in FEMA trailers has nearly tripled from last year. About 99,000 families displaced by Katrina are living in the trailers. One year ago, many more people were living with family members or staying in hotels.

Happy Thanksgiving! Long Live Fryer and Flier (a pair of pardoned turkeys who still failed to make Bill Schneider's CNN List of Political Turkeys)

This nice look back into time from George Will at the Washington Post begins here,

"Twas founded be th' Puritans to give thanks f'r bein' presarved fr'm th' Indyans, an' . . . we keep it to give thanks we are presarved fr'm th' Puritans."

-- Finley Peter Dunne

and ends with this,

Thanksgiving is, Hodgson thinks, a counterpoint to Americans' other great civic festival, the Fourth of July:

"It is good to celebrate the public glories and the promise of American life with fireworks and speeches, better still to celebrate the mysterious cycle of life, the parade of the generations, and the fragile miracle of plenty, in the small warm circle of family, the building brick of which all prouder towers have always been constructed."

An Englishman (Samuel Johnson) said that people more often need to be reminded than informed. Sometimes Americans need a sympathetic foreigner, such as Hodgson, to remind them of the dignity of what they are doing, on this day and all others.

For us, here and now, its all about football, food and for those of us who have them, family. There was a time once, a long, long time ago, when it meant something different: Overcoming hardship, making new cultural connections, and above all, peace. At a minimum we can think about this as we munch chips and drink beer. A lot has happened between then, and now.

Happy Turkey Day!

Corn Pone for Holidays

Some of us find the holidays too depressing, so, here is a motley medley from Bill Vaughn to liven things up:

A citizen of America will cross the ocean to fight for democracy, but won't cross the street to vote in a national election.

A real patriot is the fellow who gets a parking ticket and rejoices that the system works.

A three year old child is a being who gets almost as much fun out of a fifty-six dollar set of swings as it does out of finding a small green worm.

An optimist stays up until midnight to see the new year in. A pessimist stays up to make sure the old year leaves.

By the time you're eighty years old you've learned everything. You only have to remember it.

Bill Vaughan

Thanksgiving

Pride slays thanksgiving, but an humble mind is the soil out of which thanks naturally grow. A proud man is seldom a grateful man, for he never thinks he gets as much as he deserves.

Henry Ward Beecher


Wapo has this on Georgia's newly enacted law on residency restriction, summarizing legal, empirical and ethical issues.


In a new development in the terrorism cases, Al Marri is the only civilian currently being subjected to military authority who was not arresed on a battlefield [ref. MCA, Milligan, Reid, Duncan.] says former Attorney General of the United States, Janet Reno. Reno signed on to a brief by prominent former Justice Department officials that closes with these memorable words,

"We would do well to remember Benjamin Franklin's admonition that "[t]hose who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." An Historical Review of the Constitution and Government of Pennsylvania, title page, (1759) (Arno Press reprint, 1972).

Related on the topic of security in my web travels this morning I was troubled to see this quote by Henry L. Stimson, former Secretary of War. I am still troubled at the way in which the Pacific war was closed, even though it may have saved many, many American lives (I have no problem with that aspect). The nuclear option has created a precedent from which the world is still seeking to recover:

On Tuesday, August 14th, when the news arrived of the final surrender of the Japanese we had a little thanksgiving meeting in the Casino after dinner. Henry L. Stimson

Just in from the Fifth Circuit

Just out is an unusual case, click here, in that TCCA had ordered a review by affidavit after a recommendation (without conducting a hearing) from the trial court to deny relief, following which the district court conducted even more extensive hearing and fact-finding proceedings. Many if not most cases are decided with little or no fact finding below. At least St. Aubins can feel like the courts looked at the evidence in his case. The court also updated its formulation of AEDPA deference, reying on the Neal, Henderson, Collier and Cluck cases from within the circuit, and Williams, Bell, and Rompilla from SCOTUS; and concerning the failure to investigate claim, Miller, 420 F.3d, Wiggins, and Strickland. Because the facts revealed that St. Aubin's lawyer had conducted a pretty thorough investigation and decided not to investigate further or present evidence at issue to a jury the court affirmed the denial of relief.

But it is surprising and highly questionable for the court to rule categorically that it was not unreasonable to investigate mental health history further just because what was discovered was thought to be damaging. That completely discounts the possibility that mitigating evidence might have been uncovered upon further analysis and investigation.

The court also presented some interesting cases and comments on "double edged" evidence.

St. Aubin v. Quarterman, No. 05-40277 (Fifth Circuit, Nov. 21, 2006)

Oppression

Fear, and the fear of war in particular, is a time-tested recipe and tool of oppression. Freedom from oppression and its incidents is the essence of democracy. To think oppression only as likely to occur as a tsunami on the banks of the Potomac just makes it that much less reassuring to know that if the subject is officially sanctioned oppression, it can be, and probably is, coming soon to a theater near you. Oppression, pure and simple, is a condition from which a freedom-loving and democratic People have the most to fear. In the hierarchy of causes to be abhorred, cruelty and ignorance, intolerance and bigotry are not far behind.

Think of torture. We have rightly rejected torture and yet in war routinely excuse it; not being alone in doing so does not make it right. But can’t it be avoided? To bring home the notion of precisely what is loathed and why, draw upon the facts [of the case of Bell v. Cone (2005)] which spotlight the distinctions that can and must be drawn between a most brutal of acts worthy of the ultimate penalty of death (according to some), and all others in the criminal justice context.
While a gruesome torturous murder may well deserve the ultimate penalty many heinous exhibitions of human imperfection are carried on regularly and are actually implicitly, if not explicitly, given approval at the highest levels of government in the name of war and national security, or justice or criminal justice on a very large scale, particularly overseas, and not least in the context of America's own criminal justice system of prisons and punishments. That the President should ask the question, “who authorized putting him on pain medication?” says it all.

Misuse and abuse of power by government officials has historically been subject to scrutiny in countless lawsuits under Section 1983, and has also formed the topic of numerous books, articles, and judicial opinions.

What is transpiring overseas, in Iraq, in Darfur, and in all of the other so-called “hot spots” is equally deserving of our attention and should be targeted for correction, remedial action and improvement. Poverty both domestic and abroad, and development and stewardship of scarce natural resources in all respects must also be addressed. These are the issues du jour falling under the heading of oppression.

To return to leading developments in the law in this arena, consider also how, not only that, High Court Justices, Mr. Souter and Ms. Ginsburg, found it necessary to note in an opinion concurring in part and concurring in the judgment the need for Congress to explicitly authorize locking up citizens indefinitely before the government, even with the approval of the President, may do so without an opportunity to challenge that detention:

The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of government, whose particluar responsibility it is to maintain security. * * * A reasonable balance is more likely to be reached on the judgment of a different branch.

Hamdi v. Rumsfeld, (2004).

Especially in foreign relations and even in the context of war callous action evidently create significant blow-back. A combat veteran of the Iraq war writes,

We arrested people in front of their families, dragging them away in handcuffs with bags over their head, and then provided no information to the families of those we incarcerated. In the end, our soldiers killed, maimed and incarcerated thousands of Arabs, 90 percent of whom were not the enemy. But they are now.

Another officer reports, “we can't kill them all. When I kill one, I create three.”

There is, therefore, considerable anecdotal support for the three propositions to follow, noting that persuasion—the power of the pen—is the sole source of the legitimacy of the judiciary:

A. Liberty and justice, if not security, have little to fear from an independent judiciary;

B. The judiciary and executive define their terms to somewhat different effect in theory than when honoring them in practice;

C. There is more to fear from a strong executive than from a robust judiciary.

Such seemingly transcendent issues are neither obsolete nor mere immaterial cumulative backdrop from the bygone era of the Federalists. The possibility that Americans might walk in the shoes of the rest of the world for even one day suggests viewing the state of the globe as a mirror image of conditions that faced inhabitants of the Colonies with respect to George, King of England, circa 1776.

Who can think it not oppressive to jail or abduct—politely termed “extraordinary rendition” but very reminiscent of Krystallnacht—without legal process any citizen or alien, even those suspected of terrorism, sedition, or criminal activity? We can not condone torture, nor can we look the other way when we condemn the accused in secret kangaroo courts and in summary “military tribunals” based upon scant evidence.

In view of this and additional abuses of power, to include a morally repugnant if not rapacious laissez faire capitalism itself with all of its associated shortcomings, it should be evident to many that America has become the arrogant, selfish and greedy neo-imperial superpower. It is no longer, as formerly perceived, a benign sleeping giant. The government of America is a mature, full-blown and lumbering monstrosity. Its toxic ungula vibrate to and fro in omnipresent profanity. It behaves with impunity and carelessness and callous disregard for human rights and the common good. It does not have to be this way. America is better than that.

Communications Decency Act Protects Users and Distributors of Online Content

The California Supreme Court ruled Monday that individual Internet users cannot be held liable for republishing defamatory statements written by others. Available here from News.com.
The unanimous ruling appears to be the first to make clear that a 1996 law called the Communications Decency Act protects not only providers, but also users of online services who redistribute content. Earlier court rulings had established that Section 230 of that statute shields companies such as AOL and eBay from such liability, provided that they make good faith efforts to restrict access to material that could be considered "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable."

The majority opinion is here, penned by Associate Justice Carol Corrigan.

No Honor in Contientious Objector Aguayo's Court Martial

Here are moving excerpts from the heart, of Agustin Aguayo, an Army medic facing court martial for refusing to redeploy to Iraq. I must say that, especially after seeing Flags of Our Fathers, it is not unreasonable to me that somebody would object on personal and religious grounds to waging war. Only those who have been there could possibly have any idea of what it entails to go to war. The Bush chain of command got it wrong on this one too. It is no dishonor to stand up for what you believe. The prosecution is discretionary, so the Army can only be motivated on political grounds and from an effort to preserve discipline in the unfortunate ranks of the disaffected and demoralized. I can't quite understand what we are fighting for at this time, except to give cover to somebody's big mistake. It was senseless to start this war and senseless to continue to wage it. Even the former Secretary of State and senior statesman Dr. Henry Kissinger was heard on CNN last night, saying this war can't be won. And if you can't win then what's the point? Agustin's statement can be found on his website:

My beliefs and morals come from a transformation as a direct result of my combined religious/family upbringing, military experience, and new experiences I’ve created and sought. Such as, I have surrounded myself with people who cherish life and peace. I have become an active member and supporter of many peace organizations such as The Center on Conscience & War, Military Counseling Network, The Munich Peace Committee, and American Voices Abroad. I have overhauled my life with new practices such as the peaceful art of Yoga and meditation. As time progresses (it has been more than two and a half years since I became a CO) my beliefs have only become more firm and intense. I believe that participating in this (or any) deployment would be fundamentally wrong, and therefore I cannot and will not participate. I believe that to do so, I would be taking part in organized killing and condoning war missions and operations. I object, on the basis of my religious training and belief, to participating in any war. I have to take a stand for my principles, values, and morals and I must let my conscience be my guide.

In my last deployment, I witnessed how soldiers dehumanize the Iraqi people with words and actions. I saw countless innocent lives which were shortened due to the war. I still struggle with the senselessness of it all – Iraqi civilians losing their lives because they drove too close to a convoy or a check point, soldiers' being shot by mistake by their own buddies, misunderstandings (due to the language barrier) leading to death. This is not acceptable to me. It makes no sense that to better the lives of these civilians they must first endure great human loss. This, too, is clear and convincing evidence to me that all war is evil and a harmful.