Tuesday, December 12, 2006

Chilly, but Nice in Western Maryland

Just a little something to get you going on a chilly Tuesday morning in Western Maryland. Thank god it's not Vietnam and thank god its not Iraq.

1 Over at SCOTUSblog, Lyle Denniston is reporting that the Supreme Court has reversed the Ninth Circuit's decision in
Carey v. Musladin. The short majority opinion is more about habeas standards than about button-wearing prejudice, though the three short concurrences get into the substantive issues a bit more. For some additional blogosphere commentary, check out Crime Consequences and Althouse (blogs). Hat Tip Doc Berman at Sentencing Law and Policy.

2 California's Prison Problems Spotlighted in
NYT:

More on that in
LA Times: "Punishing Prisoners at all Costs." As I note in my header (the blurb at the top, describing my blog), "there has to be a better way." (by Joe Domanick, author of "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," -- Domanick is senior fellow in criminal justice at the USC Annenberg Institute for Justice and Journalism)

3 Texas Parole: This is of special interest to me so I'm going to do a bit more reading and post further on this. Meanwhile, read
Doc Berman on the future of parole here.

4
Unintended Consequences: Iowa's residency restrictions creating more problems than they solve. Hat Tip Doc Berman.

5 Sentencing and SCOTUS:
Sentencing fans eagerly awaiting what the Court will say in the Cunningham case about Blakely's applicability to California's sentencing system will have to wait at least another month.

Some have speculated that, in light of the cert grants on Booker issues in Claiborne and Rita, the Court might not issue Cunningham until late Spring. Personally, I would be surprised if the Justices will sit on Cunningham until it deals with Claiborne and Rita (which won't be argued until late February), but who knows what we should expect from slow-poke SCOTUS these days.

Doc Berman's blog Sentencing Law and Policy has all this and more. My hat is permanently tipped in your direction Doug. Thanks!

Christmas Is Time For Giving: As it will soon be Christmas, or Holidays, or just time for gift giving and spending money, let's not forget that lots of people will be missing their loved ones who might be soldiers fighting overseas, or locked away in prison: there is no justice. Lots of prisoners are just plain innocent. Too many. That's why I started the Innocence Project and write this blog and newsletter. Please donate. Send your check to Innocence Project, PO Box 200, Jefferson, MD 21755.

It is an especially hard time of year if you are in prison. It's hard even if you're not. It is an especially good time to begin thinking of new resolutions and turning over a new leaf. If you have not done your good deed for the day, month or year just start today and give a little. It will make you a better person! There is always room for improvement, right?

Monday, December 11, 2006

Culture Warrior: A Preview of the Book and Z's Monthly


On the topic of begetting wrong results Bill O'Reilly has a new book, Culture Warrior (Get this from my Amazon store at right and, at no cost to you, support the Z blog). Being of Irish descent, he fancies himself a modern day warrior and while he has a remarkable story of “success” he admits he really means financial success. Making a pile of money is pretty much all that he has done. His success has come at the expense of truth in my opinion. He tells the regular American guy what he wants to hear: “liberals” gays and godless activist judges are changing the world and not for the better. He claims this is not about liberals v. conservatives, so he uses S-P “secular progressive” -- in other words sans religion and not just liberal but wildly so. Disingenuously, he has written that the culture war is “much more complicated than that” but from the every day examples he talks about it is obviously, precisely, clearly about liberals and conservatives. There is simply no other nametag that fits. Using the term S-P doesn't change the facts.


So what does this have to do with wrongful convictions? A recent article by Professor Angela Davis of the Washington College of Law at The American University (my alma mater) explains that reviewing courts have created a climate in which prosecutorial “discretion” has become almost complete, the line has been blurred between what is legal and what is not legal as to what prosecutors may do or not do in order to win convictions, including subornation of perjury, fail to disclose evidence of innocence and other facts and evidence tending to show defendant's innocence, or that may be used to impeach, and on and on.

You'll have to tune in to the Monthly, (November issue at bottom of
this post) coming in a few more days, for the rest of the connection between O'Reilly and Davis, "Culture Wars" in action. The suspense is already killing me.

As always, comments are welcome all the time.

A Rock and A Hard Place: American Foreign Policy

The Death of Former Dictator and Criminal Pinochet (RIP) Is Reminder that the U.S. Has Not Always Shunned the Niche Between A Rock and A Hard Place: Realism v Democracy Promotion in US Foreign Policy. Straight to you from Washington Post:



Aliyev drew a predictable conclusion: that he could be both a dictator and an American ally as long as he delivered energy and security cooperation. So Azerbaijan is pumping oil to Europe, and has promised gas this winter to pro-Western Georgia. It is allowing the U.S. military to use its airspace, and it reportedly hosts CIA monitoring operations of Iran. Meanwhile, Aliyev's government is systematically attacking the country's pro-democracy forces, while favoring Russia's Azerbaijani allies. The losers are the very "democratic reformers" to whom Bush said: "When you stand for your liberty we will stand with you."







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Saturday, December 09, 2006

How Appealing

Howard Bashman's blog HowAppealing is the goto place for news updates related to law, courts, and crime (and especially appellate litigation).

He has more links to newspaper articles on the lawsuit against Rumsfeld and one from Washington Post called, "Commute this Sentence: A clemency case not even President Bush can ignore--or can he?" (I've decided that WaPo is a pejorative, aka bad, term and won't use it any more);

And this from Howard:

the brand new installment of my "On Appeal" column is headlined "Have 7th Circuit Judges Gone Off the Deep End?" My essay concludes:
If the 7th Circuit desires that the appellate record better reflect the precise basis for the federal district court's subject matter jurisdiction, those appellate judges should consider cracking the whip on their federal district court colleagues. It is the federal district court judges who, in the first instance, have the ability to ensure that the record is absolutely clear concerning what facts and allegations do or do not give rise to the district court's subject matter jurisdiction.

I continue to enjoy the intellect and writing of Judge Posner and Chief Judge Easterbrook, but sometimes, to use Judge Posner's own words, they do cross the line and become fusspots and nitpickers when the question arises of berating or sanctioning attorneys for minor and inconsequential transgressions.

NB. I too have started thinking that Judge Posner has gone off into the depths. But judges are allowed to do that I suppose.

Allegations of Torture Overseas in Our Courts

Direct from WaPo:
Saturday, December 9, 2006

The Bush administration asserted in federal court yesterday that DefenseSecretary Donald H. Rumsfeld and three former military officials cannot be held liable for the alleged torture of nine Afghans and Iraqis in U.S. militarydetention camps because the detainees have no standing to sue in U.S.courts.

Deputy Assistant Attorney General C. Frederick Beckner III also argued that a decision by the court to let a trial proceed would amount to an infringement by the judiciary on the president's power to wage war and would open the door to new litigation in U.S. courts by foreign nationals who feel aggrieved by U.S. government policies.


NB. Sen. McCain has argued previously that we don't want to encourage torture because that would encourage "them" to torture Americans. He should know because he was held captive by the Vietcong. So why would we not want to show the whole world that we will enforce the law, whether or not the law is sought to be enforced by "foreigners"? Comments anybody?

Do we really want to demonstrate that the President's power to wage war will include everything, even the power to order torture and turn a blind eye to violations of basic human rights? Even the possibility of that power? The fact that this is even a debatable question is itself rather curious in my view. This is the old "ends will justify the means" slog. But here, it is highly questionable whether getting somebody to say something under extreme coercion yields useful and accurate information. One more thing, inflicting extreme pain and suffering, and torture, must really be seen as simple retaliation and retribution for being on the wrong side of conflict, and wrong, because there is not one case that has been brought to the public's attention where torturing somebody has yielded useful information. And even if it did and that has not been brought to our attention it is still wrong absolutely, and a good way to keep our enemies even more dedicated to harming us.

Crim Law Brief

My law school (alma mater), Washington College of Law, is putting out a new journal called Crim Law Brief. More information about this is available at the link. They are sponsoring an interesting event in January called "Prosecutorial Power" or something to that effect. I'll put more info up when I get it. The first issue, Vol 1 Issue 1, has this article by Angela Davis, Professor of Law, that promises to be very interesting.





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Drug War, Congress, Sentencing, SCOTUS

The drug war and the new congress, sentencing and the Sixth Amendment, and it was an eventful week at SCOTUS. Doc Berman's is still the place to go.





Friday, December 08, 2006

Law Bad? Beware of Your Texas Legislators

How bad laws are made: this comment tells all. Quoted in full from OfftheKuff

[hat tip sex crimes]

What to do with sex offenders
The following was forwarded to me by a reader. I thought it was provocative. I present it here in the interest of starting a conversation.

Warning to Texas residents: a group of individuals, still at large, poses an imminent threat to the public. Several thousand Texas citizens may be at risk if the activities of these people are not monitored more closely. Registered sex offenders, you say? No, actually I am referring to the elected members of the Texas Legislature, who will soon meet in Austin for the 80th legislative session.

Several bills have been pre-filed for the session which opens in January, ostensibly with the intent of protecting Texas children from the clutches of the 45,000+ registered sex offenders currently residing in Texas. Our elected officials, certainly all honorable and well-intentioned people interested in serving the public interest, want us to believe these bills will protect us and our children from harm.

To the contrary, most of the provisions of these bills are “smoke and mirrors”, an illusion designed to create the appearance of concern and activity by your elected representatives. Our elected officials, with access to current academic and Justice Department research and statistics, know that - but they are hoping we won’t find out. Otherwise, we voters might actually demand that they do their homework and provide some real solutions.
Beyond being of illusory value, the bills contain provisions that are blatantly unconstitutional, in direct violation of several fundamental principles of constitutional law in this country - principles like due process, equal protection, protection against double jeopardy and uncompensated property takings. Registered sex offenders - though convicted of felonies and misdemeanors - still remain citizens protected by our Constitution.

Our legal system requires due process - hearings, evidence, opportunity for judicial review. It provides that all citizens have equal access to our courts. It requires that individuals may not be punished more than once for an offense, no matter how heinous. Once served, a sentence of incarceration or probation cannot lawfully be extended or additional conditions of punishment imposed by another legislative body or even a court. And the total use of property cannot be denied absent just compensation for its value. These are fundamental, time-tested, basic principles that govern how our legal system is supposed to work.

But some Texas legislators, despite their sworn oath to uphold the constitution, apparently do not believe these principles apply here or at least to some citizens of Texas. Legislators will soon be taking up several proposed laws that will create “child safety zones” around schools, parks, day-care centers and similar place where children gather. Registered sex offenders will not be permitted to walk or even drive within 1,000 feet of these facilities.

More draconian still is a provision to restrict where registered sex offenders can reside in our communities, prohibiting them from living within 2,500 feet of places where children gather. Those offenders already living within that radius - even homeowners and long- time residents who have not presented a threat in the past, probably even some nursing home residents - will be forcibly evicted or face incarceration.

These provisions would not just be applied to new offenders being released from prison, but also to current parolees and those who have already served their sentences and are no longer under court jurisdiction. Some have been off of probation for years, living as law-abiding neighbors and friends in our communities. But they will all have to move elsewhere. Thousands of Texas citizens face the prospect of being literally banished from their homes and families by legislative action - a practice unheard of and considered morally and legally unthinkable in this nation until only recently. No court hearing, no evidence of a crime, no appeal. These are authoritarian governmental abuses that all of us ought to vigorously oppose.

It would appear that there would be no lawful way to comply with these residency restrictions, as onerous as the proposals are. Even if an offender lived in a rural area, say on a 500-acre farm in the Hill Country, the bills would measure the distance restrictions from the property line of the farm to the nearest school or bus stop. How many parts of Texas, aside from the isolated mountainous and desert areas of the west, are more than 2,500 feet from a school or school bus stop location?

So where will these people go in September 2007 if these bills are passed? Well, since they cannot lawfully comply with the laws, they will probably hide. A few may choose to leave the state, as is no doubt the obvious intention of lawmakers - make these people someone else’s problem. But many of them have families, homes and jobs here in Texas. So they will just live elsewhere, hoping not to be found, costing us lots of tax dollars to seek them out and punish them for breaking a law against something that was not a crime in the first place.

Iowa recently passed a similar law and the rate of non-compliance with that state’s sex offender registration statute jumped by 300%. The Iowa County Attorneys Association, the people in charge of actually enforcing that statute, is now opposed to residency restrictions that were enacted there and are being proposed here in Texas. The unintended consequence of what was probably an honest and well-intentioned effort turned out to be worse than the problem they were trying to solve.

California recently passed a similar law by public referendum and it was immediately halted by a federal judge because its provisions were in obvious violation of our constitution. A similar federal court challenge will surely be filed here if the bills pass as proposed.
The academic and law enforcement research does not support the effectiveness of these restrictions. Several prominent research groups - including child abuse prevention advocacy groups hardly sympathetic to sex offenders - have concluded that there is no statistical link between restricting the residence of registered sex offenders and the incidence of sexual assault cases.

More importantly, the proposed bills ignore the faulty theory behind sex offender registration in the first place. Let me clear up a very common misconception - most registered sex offenders don’t commit repeat offenses. Recent research by the federal Department of Justice has indicated a recidivism rate of between 4 and 15 %, lower than for most other categories of major crimes. And here is the really startling fact: by far, most sexual assaults of a child are committed by a parent, other family member or family acquaintance, not the registered offender living down the street. Most of the people on the list of registered offenders served their time, paid their debt to society and just want to be left alone.

Our elected officials do not want us to be aware of or understand these facts. They want us to be fearful enough to trust that they are looking out for us. Do not be deceived by this group of people - a group representing a direct threat to the liberty and lives of thousands of law-abiding, tax-paying, voting citizens. Citizens just like me.

What do you think? Let me know.
Posted by Charles Kuffner on December 07, 2006

Thursday, December 07, 2006

Out of Iraq

How many different ways can you say
OUT OF IRAQ?

Hint: what is one less than eighty?

What happened to the 80th recommendation?
That was the straw that broke the camel's back.
What?

Purchase the Iraq Study Group report at my convenient link at the top of this page or click on the link you just read. Proceeds go to a worthy cause, my tip bucket (very, very, tiny right now--actually the bucket is VERY BIG but just not very full--its early in the game, right?), which feeds the Prison/Innocence Project (501(c)3 iminently in progress) and Newsletter. The next volume is due out on Dec. 15, when I get around to editing and layout.

Guest Blogger

I would welcome anybody who is interested in taking up blogging to try it out right here as a guest blogger. That would be anybody with shared interests of course: Crime, Law, National Security...

Contact yours truly.

Wednesday, December 06, 2006

Review: Fiasco by Thomas E.Ricks

Fiasco: The American Military Adventure in Iraq. (Thomas E. Ricks, Penguin Press, New York, 2006)

The curious thing about a book, any book, is that it tends to raise a fundamental question: What is there in this piece of printed pulp that was, at one time, a living tree do I not already know? Then you read it and find out.

Ricks knows what he's talking about as he is the Washington Post's senior Pentagon correspondent and got a lot of information contemporaneously, and from emails from personnel engaged in the operations. From this he has pieced together a “first draft” of history, and a good first draft it is. There are many, many anecdotes and real-life scenarios showing what life was like in the combat theater which I appreciated, being relegated to my soft chair: the stories I found particularly sorrowful were the ones describing fratricide, roadside bombs and deaths and mutilations of comrades. I don't know whether having lived through and observed (through the media) what was actually happening in and around Iraq contributed to my feeling of deja-vu as I read Fiasco.

The answer to the first question referenced in paragraph one above was, as it turned out, both a lot and not much. There is a lot I did not know about the how of what happened in Iraq, but I pretty much knew what happened as and when it happened. At least I thought I did, and after reading Fiasco I still think so. Maybe that has something to do with the fact that I happened to read much of the reporting as it became available in the media, although I don't remember having seen his bylines. Maybe it just means that this book describes events straight down the middle, even if there might be some spin in the title.

When Ricks uses the word “adventure” in the subtitle he's just being polite. But why be polite? He really uses the term in the critical sense of “adventurism” so the book actually should have been titled the “misadventure” in Iraq. Is that accurate? Well, that is the same as asking whether he is right. The elections are over, Ricks is a seasoned reporter and not a politician and so we don't expect a lot of spin or obfuscation, although the timing of publication as to the election seems a tad suspicious. So what? Is he being fair and honest, because fair and honest is what we should expect from a serious book that is, on its face, not satirical and not attempting to be conspicuous conspiratorial political ax-grinding, like Ann Coulter, Bill O'Reilly, and some other people I know, and this is to take nothing away from grinding or axes. I like to keep my edges sharp, too.

After taking in the first paragraph of Fiasco and again after finishing chapter ichiban I happened to agree with virtually everything. It's true, I confess, my first reaction was, “okay, I already know everything that could possibly be in here” and, “I could have written that.” That is what bias does. It jades your view. It starts with “A Bad Ending,” paragraph one, Chapter One:
President George W. Bush's decision to invade Iraq in 2003 ultimately may come to be seen as one of the most profligate actions in the history of American foreign policy. The consequences of his choice won't be clear for decades, but it already is abundantly apparent in mid-2006 that the U.S. Government went in Iraq with scant solid international support and on the basis of incorrect information—about weapons of mass destruction and a supposed nexus between Saddam Hussein and al Qaeda's terrorism—and then occupied the country negligently.

But what of the possibility that Ricks is wrong? Would that mean we were right to go into Iraq or that we are doing a good job there? That even if we straightened things up and rebuilt the place so Iraq came to resemble one of those NICs like South Korea, India or Japan, would that justify what we did and make it right? Could that atone for our immediate sins, our mistakes, our transgressions? These are speculative questions and not easily answered even with the benefit of hindsight. To some extent they carry normative implications, and where norms are involved relativity of the moral variety lurks dangerously around the next curve. Still, it is not too soon to begin thinking about them.

The ultimate question about which Fiasco sounds an SOS but which unfortunately can not yet be answered is, assuming that we made mistakes, and committed sins, errors and transgressions, can we still atone for them or is it too late? That remedial inquiry will require intense soul-searching and above all, honesty. It might require Congressional hearings into the how and why.

Ricks rightly perceives that the Iraq mis-adventure was the Bush administration's response to 9/11; the Patriot Act was Congress's. He also perceives that that was mistaken in drawing resources away from fighting terrorism, and here too Ricks is right on the ball. So does my thinking so mean I'm not a patriot? That I am a traitor? That I am unfaithful to the troops and don't support them? It makes me wonder. And my wondering leads me to ask, “who's fault is that?” The kind of uncritical thinking that the President seems to require of the People recently reminded me of this infamous quote:

To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public." --Theodore Roosevelt, 1918.


The internet has made it all but impossible to conceal what is really going on, even in the far reaches of the world. To the extent that's true, we really do live in a transparent world. What the internet has failed to bring about, however, is an end to the lies and the spin and the attempts to communicate what is happening in purely political terms, and by political I mean Orwellian. If anything the spin is worse because it is forced to try to overcome the truth. And sometimes it does. For example, the president, through his spokespersons and alter-egos, Vice President Richard Cheney, Secretery Rice, and there are others, have been saying for three years that we are “winning” in Iraq, that we have been doing the right thing, that we needed to be there and that we need to “stay the course.” And as Robert Gates has discovered in his Senate confirmation hearings in December, this has created a political minefield. I want to emphasize the three years because that is a fairly longish period of time for anybody to be continuously conned, deceived, and mislead.

The Bush line is clearly untenable today because Bush was wrong about Iraq in the beginning, and he is wrong about it now. The military did not learn from its own experiences and the policy-makers did not study their history and, consequently, we are where we are today, a sad lot much like where the British were 75 years ago, in danger of losing big chunks of prestige and colonial territory. Ricks aptly quotes from British Lt. Gen. Aylmer Haldane, The Insurrection in Mesopotamia, 1920: “From the beginning of July until well into October, ... we lived on the edge of a precipice where the least slip might have led to a catastrophe.” Only by “luck, pluck and courage” (typically British traits not only by coincidence) was “a long and agonizing guerrilla war” avoided.

General Myers in particular was saying things were going very well when they weren't, but he was not alone.

When Bremer flew home to Washington for quick consultations at the end of July 2003, his message was that the situation was far better than it appeared in the news coverage. *** In fact the U.S. Occupation was about to be confronted by a full-blown counterinsurgency. But as the United States entered its first sustained ground combat in three decades, this was his story, and he and the entire Bush administration stuck to it.

General Franks, too, could not be heard to say things went badly and continued to insist that “the plan” for Iraq was a good one, but in hindsight we know that this was wrong. It was wrong from the beginning. And, in the fact, Ricks notes that even the stated tactical objective for going in at the outset was wrong. Wrong tactically and wrong strategically. That was the mushroom cloud scenario, thanks to Secretary, and formerly National Security Adviser, Rice. Wrong. Wrong. Wrong? Only General Colin Powell has come to make this, which is also his current assessment, public. The folly is described in counterpoint by Ricks using this quote from Gen. Franks's memoir, American Soldier:

History will record that America's strategy for fighting terrorism was a good strategy, that the plan for Operation Iraqi Freedom was a good plan—and that the
execution of that plan by our young men and women in uniform was unequaled in
its excellence by anything in the annals of war.”

Ricks provides much evidence to the contrary throughout, but especially in “False Start” which opens the first chapter of Section II, in Chapter 7.

“Fittingly,” he writes, “a war justified by false premises began on false information.” My own theory on this just happens to be that most wars actually do start that way. If somebody wants to make war they are usually going to be telling lies in order to make it happen. Remember Vietnam and the alleged naval attacks at Haiphong Harbor? Then Ricks quotes Richard Perle, “This was, I believe, a successful intelligence operation by Saddam Hussein in which we were led to believe that he was in a certain location, and he wasn't there.”

So we were duped. So much for the decapitation strategy. Decapitation, followed by an inept occupation, demonstrably resulted in chaos. So much for the just war theory. So much for the theory of preventive war. So much for Bush's legacy. I'm truly sorry. I voted for him the first time. War is not glorious. War is never preventive, never just. War is always, sadly, with tears in your eyes, only necessary to preserve life and limb, no more and no less. That is what the Iraqi insurgency is now teaching. For posterity, that is being taught to us, by us. Will we learn?
We learn that as early as two months following the invasion of April, 2003, the occupation was “teetering.” In “Franks Flunks Strategy” we get this:

The American military believed it had taken Baghdad.
To understand that mistaken conclusion, it is necessary to step back and examine Gen. Tommy Franks, the senior U.S. commander in the war, and particularly his misunderstanding of strategy. That is a grand-sounding word, and it is frequently misused by laymen as a synonym for tactics. In fact, strategy has a very different and quite simple meaning that flows from just one short set of questions: Who are we, and what are we ultimately trying to do here? How will we do it, and what resources and means will we employ in doing it? The four answers give rise to one's
strategy. Ideally, one's tactics will then follow from them—that is, this is who we are, this is the outcome we wish to achieve, this is how we aim to do it, and this is what we will use to do it. But addressing the questions well can be surprisingly difficult, and if the answers are incorrect or incomplete, or the goals listed not reachable, then the consequences can be disastrous.

This, in a nutshell, states our current dilemma. Because we went in expecting one thing and found another. Expecting WMD we found none: expecting liberation we found rebellion and sectarian divides.

Ricks has amply demonstrated, as events on the ground have also demonstrated, that neither the President, Gen. Myers, nor Gen. Franks have been speaking the truth. Clearly, to the extent that they believed what they said was true they were clearly wrong. To the extent they were heeding the advice of the boots in the sand, they were wrong. But Ricks shows that not all the advice percolating up from ground (or intel) was in tune with Bush's Polly-Anna scenario. Well intentioned, no doubt, but still very wrong. What the guys at the top were saying wasn't true. For three years the Republic has wrongly been fed Mis-information and Untruth by our leaders. That is a sad commentary on us. Sad because we have been complicit. We have let them do it, and let it be said that they have done it with impunity.

In democracy, the People have a collective duty to take responsibility for what happens. That is how we earn the right to be free and democratic. Not imposing accountability for being told lies, and for making mistakes, and for clearly unproductive, unjust and stupid results is the first step toward tyranny. Going to Iraq was stupid. Democracy is not stupid. Iraq today is undemocratic, un-American, and definitely not un-Cola cool, baby.

And hear, hear, the public is finally fed up with “strong but wrong.” Come to think of it, that's a lot like “shoot first and ask questions later.” But gee, that's apparently exactly what we've been doing. We have taken the paradigm of our own eighteenth century Indian wars and taken it to Iraq and, surprise! It did not work. And it took a professional cadre of military men to let—no, let is too passive—they made this happen. And we, the People, have stood by and allowed it to happen. There will be consequences. It is ultimately unfair, however, to lay all blame on the military men, even those at the top, because our Constitution provides for political control of the military.

In sum, Fiasco provides a good preliminary account of some of the fateful decisions in terms of their effects, but it is not yet clear precisely what the really big and most critical decisions were, when they were made, or by whom, excepting the decision to go in itself. So we are still left wondering whether it was Rumsfeld, Bush, Bremer, or somebody else at the very top who is to blame for the full extent of the real fiasco. The book points out but does not develop many of the issues of fraud, waste and abuse associated with the employment of military contractors. We should be learning more about this in coming years.

Finally, one of the decisions that must be viewed with great skepticism was Maj. General Raymond Odierno's “get tough” policy. In broad-brush, thus began a formal disagreement between the approach (attitude) employed by the regular Army, armor and artillery, and the thinking of the Marines, and the counter-insurgency methods learned from past experience. To defeat an insurgency you must live among the people and win them over one by one. But in the early days nobody noticed the telltale signs that an insurgency was forming. That insurgency, in fact, might even have been planned at the outset given the paucity of the resistance of the regular Iraqi army in the opening days of the war.

I noticed too that Odierno's unit is stationed in Texas. Ricks notes that they sometimes felt like second stringers, and so it occurred that maybe they had a complex and took it out on the Iraqis. Mostly, however, I sensed that Lt. General Ricardo Sanchez, who was the senior military commander, must bear the brunt of the blame for what went wrong after the politicians took over. The sections about prisoner abuse and Abu Ghraib tell a very depressing story deserving of entirely separate treatment. It is truly worse than shameful that that has become part of the history of the U.S. military.

And just briefly comparing Fiasco to State of War: The Secret History of the CIA and the Bush Administration (Free Press, January 2006) by James Risen I found both books are similar in their criticism of Bush, but Risen has focused more on the secrecy and intel, as his title suggests, and relied more on anonymous sources, and that was frustrating to me. Knowing who said what gives a book a definite sense of credibility. Having said this, I think I'll need to take a second look at State of War. Maybe that will be next, after I review Soldier, by General Powell.

Lopez v. Gonzales: Trafficking does not mean help to possess

Yesterday, the Supreme Court issued its opinion in the case of Lopez v. Gonzales. IMHO
a Common Sense Definition (of "trafficking" in the INA) prevailed over a very Legalistic argument. Even if the State makes a crime a felony the INA's language is controlling. The conclusion is worth quoting:

In sum, we hold that a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it proscribes conduct punishable as a felony under that federal law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Surprising, or not surprising, that what appears to be a VERY simple and straight-forward, as in fastball down the middle, question went all the way to the Supreme Court? But let it be noted that there was a lone dissent, by Justice Thomas.

IMHO he continues fighting the bad war on drugs with the get-tough approach; but let's do that someplace else, and not make bad law over it. Is he just making a political statement?

Trends in Ohio Supreme Court

A friend called my attention to an interesting case involving those ever-ephemeral "newly created" constitutional rights we hear so much about, which always create reactions in the "originalist" camps. The Ohio Supreme Court has ruled 4-3 that polygraphs cannot be made a condition of probation for a juvenile sex offender. The Court made available this decision summary.

Getting Active

I joined the Federick County Democratic Party today. Maybe they'll call me now so I can make my run for president in 2008. Too bad I have the same problem Ahnie has, we weren't born here. Actually, I just want to be the State Ombudman for Prisoner Rehabilitation and Re-Entry. I'm not asking for too much, and because that would require the sacrifice of much time that I otherwise put into BLOGGING and other fun stuff, I might even get paid a little something something. At least minimum wage, maybe? I noticed that the guy over at 3-L Epiphany (a blog) got a job with the Ohio Legislative Service, and says law school is finally looking like its worth it. But I think it is a privilege just to be rubbing shoulders with those who have been chosen (would you really choose to be a lawyer if you knew what they do for a living?) for this noble profession.

I got this from Brian Hammock yesterday:

One month ago you helped make history by electing Martin O'Malley as our 61st Governor of Maryland. I'm writing this morning to ask for your help once again as we prepare for the Gubernatorial Inaugural.

Invitations for the inaugural need to be sent out next week. We are looking
for volunteers to help assemble the invitations next Tuesday, Wednesday, and Thursday at the 5th Regimen Armory in Baltimore (219 Twenty-Ninth Division St,
Baltimore, MD 21201 Map). We have three shifts available each day: 3:00 -5:00pm, 5:00 - 7:00pm, 7:00 - 9:00pm.

This will be a good opportunity to see friends from the campaign and be a part of this historic event. Food and beverages will be provided. Please let me know if you can help and which day/shift you are available. You can let me know by email or call the inaugural office at 410-547-8884 ×200.

Monday, December 04, 2006

Immigration, National and Domestic Security

At this link I published a book review of Just Americans chronicling the story of Japanese immigrants in World War II. Now, Iyal Press has this article in this weekend's NY Times Magazine about immigrants. He looks at whether they are making us safer or not. There is a debate over this, both in real world practice and in the academy (as in Ivory Towers).

Case Draws a Crowd at SCOTUS



SCOTUSblog will no doubt be calling attention to this phenomenon soon, reminiscent of the Sixties and the civil rights era. The government argues that, in effect, desegregation laws are no longer necessary. True or False?









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Saturday, December 02, 2006

Circuit Trends in Habeas Corpus, AEDPA


When did you last admit to having made a mistake about something? Anything. That is why judicial review, and in particular, Habeas Corpus review, remains so extraordinary. It provides a searching and thorough reexamination in a matter of controversy and, where warranted, it requires the finding: judge, you made a mistake. To a judge this must be an excruciating moment, akin to punishment. Habeas writs are granted very infrequently, so that when they are granted that is news. Here are a few items of note recently published elsewhere that I happen to be collecting, and now make available to you, dear readers:

Killing Habeas: Maryland's Unique contribution to the history of Habeas here


President Abraham Lincoln suspended habeas corpus in Maryland on April 27, 1861, two weeks after the Confederate attack on the Union garrison at Fort Sumter. “Lincoln could look out his window at the White House and see Robert E. Lee’s plantation in Virginia,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution,” said. “He was also facing a rebellion of so-called Peace Democrats in Maryland, meaning there was a real chance that Washington would be surrounded and a real threat that the White House would be captured.” On Lincoln’s order, federal troops arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, who were jailed so that they couldn’t vote to secede from the Union.

Relief Granted:


Stewart v. Wolfenbarger, No. 04-2419 (6th Cir. 11/9/2006) (6th Cir., 2006) See previous post here.


A Question of Innocence:


Rittenberry v. Morgan, No. 05-5606 (6th Cir. 11/9/2006) (6th Cir., 2006)



When does procedural default bar federal review? When is a state-court decision based on "independent and adequate state grounds"? Triggering these questions was Confrontation Clause ruling reviewed in Wright v. Quarterman, No. 05-70037 (5th. Cir. 11/17/2006) (5th. Cir., 2006). This case seems to say that you must make a contemporaneous Sixth Amendment objection together with a Hearsay objection under Texas Rules of Evidence in order to preserve Confrontation Clause grounds for federal habeas review. But I was under the impression that the Texas Rules of Evidence are grounded in the federal rules...or does that not matter? But what if the fundamental reasoning for having hearsay objections (and exceptions) was grounded in the Confrontation Clause itself? Can that not be sufficient?


Grant of Relief Affirmed in James v. Brigano, No. 05-4003 (6th Cir. 11/30/2006) (6th Cir., 2006) resolving a question of procedural default

(Ohio Court of Appeals' lengthy opinion denying James's motion to reopen does not frame its rejection of James's underlying claims as a failure to find prejudice or on procedural grounds, but instead rejects those claims on their merits. Therefore, because the Ohio Court of Appeals did not actually rely on the procedural bar in rejecting either of James's claims, those claims are not procedurally defaulted for habeas purposes)

James's other claim for habeas relief is that his waiver of appointed counsel before the state trial court was not made knowingly and intelligently. As the record makes clear, at no time did the state trial court judge ensure that James's waiver of appointed counsel was knowing and voluntary. At no time did the state trial judge explain to James the risks and dangers in proceeding pro se. And at no time did the state trial judge make an explicit finding that James's waiver was knowing and intelligent. Instead, the state trial judge appeared to accept, and the Ohio Court of Appeals explicitly accepted, the idea that James was attempting to delay trial and avoid the administration of justice when he tried to fire Stewart with his outbursts in front of prospective jurors and to the court after voir dire.

Neither the state trial judge nor the appeals court addressed the question of waiver, even though "courts [should] indulge every reasonable presumption against waiver of fundamental constitutional rights."Johnson v. Zerbst, 304 U.S. 458, 464 (1938)".

As the district court pointed out, under even the AEDPA standard, the finding that James knowingly and intelligently waived appointed counsel was a failure to apply clearly established Supreme Court precedent because of an unreasonable finding of fact.


Remanded, Writ Vacated on Non-retroactivity: Albrecht v. Horn, No. 04-9005 (3rd Cir. 11/21/2006) (3rd Cir., 2006)

See Previous Post here: St. Aubin v. Quarterman, No. 05-40277 (5th. Cir. 11/21/2006) (5th. Cir., 2006)

Affirmed Conditional Relief: Higgins v. Renico, No. 05-1564 (6th Cir. 11/20/2006) (6th Cir., 2006)

REAL ID Act of 2005 in Action

Spina v. Department of Homeland Security, No. 04-3177-pr (2nd Cir. 11/28/2006) The REAL ID Act -- On May 11, 2005, Congress enacted the REAL ID Act, which, among other things, eliminates habeas corpus jurisdiction over final orders of deportation, exclusion, and removal, and provides that "a petition for review filed with an appropriate court of appeals. . . shall be the sole and exclusive means for judicial review" of such orders. Pub. L. No. 109-13, § 106(a), 119 Stat. 231, 310 (codified at 8 U.S.C. § 1252(a)(5)). In Gittens v. Menifee, this court ruled that appeals involving habeas corpus petitions "pending before this court on the effective date of the REAL ID Act are properly converted to petitions for review and retained by this court." 428 F.3d 382, 385 (2d Cir. 2005)

Friday, December 01, 2006

Bush Wars

Compassion Wanted: George W. Bush is the boy at the bottom of the pile, taking the weight of insult, affront and other abuse from assorted connivers, blowhards and corporation lawyers looking for clients, says Pruden here.

Yesterday's News

Gitmo Justice A Joke, here at WaPo. Just imagine the state courts, where some of the people running DOJ have come from (could that be, Texas?)

More good stuff from Scott Henson at Grits for Breakfast on Texas Justice, permanent link to right.

A Critical Report on the Detainee Hearing Process is here.

And an article headlined "Blind Inmate's Medication Claim Revived” here reports on a ruling here issued yesterday under 42 U.S.C. 1983.