Adios

I’m going out of town and I’m gonna try not to blog – at least nothing law or politics related – until I return on the fifth.

I love the Fourth of July. Hands down the best holiday. No cards to send or presents to buy, just lots of food and beer. Flag waving, Star Spangled Banner playing, fireworks exploding; damn its a good time.

So enjoy the holiday: Fly the flag and be glad you live in a country where you can burn it, watch some baseball and enjoy the Tour de France, remember our troops and raise a cold one to Hamdan, watch 1776 and listen to ol’ Ben Franklin remind us that “those who would trade their liberty for a little temporary security deserve neither liberty nor security.”

Maybe Hamdan Ain’t So Great

The good news is that Hamdan affirmed that Congress has a big role to play in the GWOT; the bad news is that Hamdan affirmed that Congress has a big role to play in the GWOT.  

As an example of Congressional wisdom and clear thinking, here is Senator Trent Lott’s view on Hamdan (emphasis added; h/t Think Progress):

I think some people are probably laughing at us. This is ridiculous and outrageous. Now in legal speak, let me say, I have not read the entire opinion, nor the dissents. But preliminarily my opinion is they probably didn’t even have jurisdiction. They shouldn’t have ruled the way they did. This is not a bunch of pussycats we’re talking about here. These are people that have made it clear in many instances that they would kill Americans if they got out. This is Osama bin Laden’s driver. And this is one other example of why the American people have lost faith in so much of our federal judiciary. This is a very bad decision in my opinion.

Now, Senator, in common sense speak, let me say, if you have not read the opinion, then you ought to STFU.

Furthermore, that you are scared of the big bad terrorists does not mean this is a bad decision. You may be willing to bend over and grab your ankles for the president every time he says “threat to national security,” but the rest of us would like some cogent explanation for his actions.

Why, exactly, will the world end if he has to follow the law and provide legal proceedings designed to discover the truth, as opposed to acting unilaterally and creating legal proceedings designed to deliver heads on platters? In either case, the guilty are punished. The difference is that in the former case only the guilty are punished. All Hamdan does is make the president provide us his reasons for choosing the latter.

If you like the explanation, you can change the law so that it no longer requires truth. The ball is in your court.

Le Tour

I am man enough to admit that I started riding a road bike because of Lance Armstrong. I’d always ridden the mountain bike, but never ‘got’ the road thing until I watched he and Marco Pantani battle it out in 2000.

Lance retired, though. So I have to find someone else to support. I had just about decided on Jan Ulrich – the Buffalo Bills of cycling – when I found out he and Ivan Basso, another favorite to win, aren’t going to be racing. What else, but doping.

The bright side is that Basso is on the same team as Dave Zabriskie. Zabriskie is an American and a very strong rider. He won last year’s opening time trial, beating even Armstrong. This year, his role would have been to support Basso. But now that Basso is out, the team ought to be Zabriskie’s.

I don’t know, maybe I’ll root for Zabriskie. Regardless of my choices, this ought be great race. Lance was awesome, but it made the whole thing seem fore-ordained. Think MJ and the Bulls in the mid-nineties. This year, anything could happen.

The Apocalypse Is Upon Us

In the news today:

Interest payments on college student loans will take a big jump Saturday, continuing the ripple effect from the Federal Reserve’s recent spurt in rate hikes that has caused borrowing costs to soar the past two years.

The rate on Stafford loans will climb from 5.3 percent to 7.14 percent. New loans issued beginning Saturday will start at 6.8 percent, according to Bankrate.com, a Florida-based research firm. The loan rate for Plus college loans will climb from 6.1 percent to 7.94 percent. Plus loans issued starting Saturday will begin at 8.5 percent.

In my in-box on Tuesday:

[written over a fiery red mushroom cloud background and around a picture of attractive young people staring at a computer with mouths agape in shock]

This Saturday, July 1, student loan interest rates are going to EXPLODE, and they’re taking thousands of your dollars with them.

Interest rates are rising by nearly 2% this Saturday—doesn’t sound like a lot, does it? But that tiny 2%, when compounded, is going to burst into a mushroom cloud of ever-expanding debt, enveloping you and your loved ones in smothering monthly payments and detonating your dreams of financial prosperity.

There is one way to save yourself from this student loan apocalypse: Finish your consolidation application now.

As you know, student loan consolidation is a financial bomb shelter where you can lock in a low interest rate for the life of you loans, saving them from the mayhem of rising rates forever. Your friends and neighbors may be hemorrhaging cash in the flaming whirlwinds of financial “aid,” but you and your money will be safe for the remainder of your student loan repayment.

I used to say “I may be a lawyer, but at least I’m not a politician or car salesman.” I think I’ll add marketing specialist to the list.

You Know What They Say About A Man Who Represents Himself,

That he has a fool for a client.

That is the gist of this story:

A judicial panel has denied an appeal from a Colbert County death row inmate who represented himself in his capital murder trial, then appealed his conviction based partly on ineffective counsel.

Thinking the opinion would be an interesting discussion of how ineffective assistance of counsel standards apply when the ineffective counsel was the petitioner, I read the opinion. Unfortunately, the court did not reach the merits; the appeal dealt exclusively with procedural issues. The defendant – Thomas Arthur – did not file his state post conviction petition until 5 years after his conviction became final. The limit is two years, so the petition was untimely. That also barred federal habeas review.

The case, though, did raise an interesting issue. Arthur argued that the federal court should excuse the untimely state filing and hear the claim because the reason for the late filing was Arthur’s inability to find a pro-bono attorney. He could not afford counsel, and thus could not file the petition.

The Eleventh Circuit rejected the argument, stating [emphasis added]:

Such an exception is unnecessary, however, because Alabama provides for the appointment of counsel for a petitioner seeking postconviction relief.

An indigent petitioner, who desires the assistance of counsel, may seek appointment of counsel if the petitioner’s postconviction relief petition is not summarily dismissed. Ala. R. Crim. P. 32.7(c).

Similarly, an indigent federal habeas corpus petitioner, seeking relief from a judgment punishable by death, has a mandatory statutory right to appointed counsel from the district court upon filing a motion requesting such appointment. 21 U.S.C. 848(q)(4)(B), 28 U.S.C. §§ 2254(h) and 2261; 18 U.S.C. § 3006A(a)(2)(B); McFarland v. Scott, 512 U.S. 849, 858-59, 114 S. Ct. 2568, 2573-74 (1994).

They may be right to reject the exception, but I’m sceptical about their reasoning. Let’s look a bit closer at these two “similar” provisions. In Alabama, the rule for Rule 32 appointments is:

If the court does not summarily dismiss the petition, and if it appears that the petitioner is indigent or otherwise unable to obtain the assistance of counsel and desires the assistance of counsel, and it further appears that counsel is necessary to assert or protect the rights of the petitioner, the court shall appoint counsel.

So, in addition to being poor, in order to receive appointed counsel, the petitioner must: 1) file the petition; 2) convince the court it is meritorious, i.e. convince the court not to summarily dismiss it, and; 3) convince the court counsel is needed to protect the rights of petitioner.

In federal court, however, counsel is appointed when the petitioner requests it, even if that is before the petition is filed. To the uninitiated, that may not seem like a big deal, but listen to what Scotus said when they considered whether or not habeas appointments should be made like Alabama’s – only after a meritorious petition is filed [emphasis added]:

the right to appointed counsel adheres prior to the filing of a formal, legally sufficient habeas corpus petition . . . . 

This interpretation is the only one that gives meaning to the statute as a practical matter. Congress’ provision of a right to counsel under 848(q)(4)(B) reflects a determination that quality legal representation is necessary in capital habeas corpus proceedings in light of “the seriousness of the possible penalty and . . . the unique and complex nature of the litigation.” 848(q)(7).

An attorney’s assistance prior to the filing of a capital defendant’s habeas corpus petition is crucial, because “[t]he complexity of our jurisprudence in this area . . . makes it unlikely that capital defendants will be able to file successful petitions for collateral relief without the assistance of persons learned in the law.” . . .

Habeas corpus petitions must meet heightened pleading requirements, see 28 U.S.C. 2254 Rule 2(c), and comply with this Court’s doctrines of procedural default and waiver, see Coleman v. Thompson, 504 U.S. ___ (1992). Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face, see 28 U.S.C. 2254 Rule 4, and to deny a stay of execution where a habeas petition fails to raise a substantial federal claim, see Barefoot v. Estelle, 463 U.S. 880, 894 (1983).

Moreover, should a defendant’s pro se petition be summarily dismissed, any petition subsequently filed by counsel could be subject to dismissal as an abuse of the writ. See McCleskey v. Zant, 499 U.S. 457, 494 (1991). Requiring an indigent capital petitioner to proceed without counsel in order to obtain counsel thus would expose him to the substantial risk that his habeas claims never would be heard on the merits. 

All of Scotus’s reasoning applies with equal force to Alabama. The majority of the work is done in preparing the petition: Factual investigations, reading the record and appeals, research, writing, editing. It is a task easily screwed up by a trained professional, and almost impossible for the average defendant. Never mind the complex laws, how is an incarcerated defendant supposed to conduct an investigation into the facts? Forcing them to go it alone guarantees that most petitions will be dismissed, regardless of the merits. That all but ensures the claims will never be heard, even in federal court.

So, saying, as does the Eleventh Circuit in this case, and Troy King in this editorial, that Alabama provides counsel for Rule 32 petitioners is misleading at best and dishonest at worst.

More On Hamdan

First, if you want commentary from smart people you can find it here, here, here, here, here, and here.

Second, the Court did not hold that the Geneva Conventions apply across the board to Al Quaeda and the GWOT. As I read Hamdan, only one Article of the Conventions was involved, and then only because Congress had incorporated that section into a statute.

In other words, Hamdan does not mean that GITMO detainees can go to court and argue that Dubya is in violation of the Conventions. The Court expressly refused to rule on whether or not the Conventions are judicially cognizable. They may be, but Hamdan does not say.

The reason part of the Conventions figured so large in the case was that the statute covering military commissions invoked the Convention Article as a standard for the commissions. Hence, to decide if they were up to snuff, the Court had to examine the incorporated Article.

Third, this is still a big decision. A statute laid out some requirements for military commissions. The President said he is not bound by statutes when he is acting as Commander in Chief. The Court said, “yeah you are.” So, though nothing in the decision forbids Dubya from creating kangaroo courts, it means he has to ask Congress for permission.

Hamdan’s holding that the Dubya cannot act contrary to statutes means the administration’s justifications for torture and wiretapping have also taken a big hit. In each instance, statutes prohibit the administration’s actions. In each, Dubya argued that, as CINC, he could do whatever he wanted. Scotus shot that down here, so they ought to do the same in the other instances.

Another one of the aforementioned really smart people agrees with me:

To appreciate what a severe blow this opinion struck to the broad outlines of the Bush administration’s theory of executive power, compare the Court’s holding that the President “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers” — powers which include its own “war powers” — with the authoritarian claim of unlimited power asserted in the infamous Yoo memorandum:

Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

More than anything else, the Court’s opinion today is the opposite of — a clear rejection of — the crux of the Yoo Memorandum. The Court held that Congress most certainly does have a role to play in the exercise of war powers, and that such decisions are most certainly not “for the President alone to make.”

Fourth, the truly shocking part about Hamdan is that the holding is newsworthy at all. All it says it that the president needs to act in concert with the legislature. You know “take care that the laws be faithfully executed,” rather than picking and choosing the ones he likes while ignoring the rest. Even in war, he does not get to reject Congressional mandates. The result? We all get a voice in the GWOT. Outrageous, truly outrageous.

Finally, there are already some idiots out there debating who is going to score the most political points off of Hamdan. Right now, I couldn’t give a rat’s a** about which of the two major parties will most benefit from the decision. What matters is that Hamdan was a big win for the United States, democracy and the rule of law.

Bummer

I was all ready to send in my resume for U.S. Attorney. But it looks like prosecutors will keep their jobs:

Former HealthSouth CEO Richard Scrushy was found guilty on six counts of bribery, conspiracy and mail fraud in the conspiracy trial against him and former Gov. Don Siegelman.

Siegelman was found guilty on seven counts of bribery, mail fraud and obstruction of justice.

That Did Not Take Long

Concerning Hamdan, I asked in the previous post:

Any suggestions on: 1) Who will be the first person to accuse the Court of aiding the enemy, or something equally stupid; 2) Who will be the first person to attack the court for relying on foreign law, i.e. the Geneva Conventions; 3) How long it will take for 1 and 2 to occur; 4) How many times over the next few weeks we are going to hear the usual catch phrases, like “activist courts” “liberal judges” “legislating from the bench” “judicial overreaching” “national security” “important part of the War on Terror” and “9-11″?

Well, the opinion is now available, and we have a winner:

We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers.

But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “redhanded,” . . . in the midst of the attack itself, in order to bring them to justice.

Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confrontand defeat a new and deadly enemy. . . .

The plurality’s willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.

Translation: “I’m scared, therefore the Executive has unrestrained powers.” Thank you, Justice Thomas.

Of course, the opinion does not do any of the things Justice Thomas says it does. Here is Justice Kennedy’s response to Justice Thomas’ idiocy:

That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.”

Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

To some, that the President does not have unchecked authority is a radical concept. To a real conservative, it is a bedrock principle. I am very thankful to finally hear someone with some authority say this:

Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticabilityof applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.

The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. . . . [T]he jettisoning of so basic a right cannot lightly be excused as “practicable.”

Under the circumstances, then, the rules applicable in courts-martial must apply.

These were kangaroo courts, designed not for justice but for expediency. That may be acceptable out on a battle field, far removed from civil society. It is inexcusable in situations like this one, where the defendants are in custody and the government has easy access to all the resources required for a fair trial. Sure we want to catch the bad guys, but we want to do it justly, we want to do it as Americans.

Gitmo A No Go

The opinion is not up yet, but Scotusblog has this report:

The Supreme Court ruled on Thursday that Congress did not take away the Court’s authority to rule on the military commissions’ validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.

The Court expressly declared that it was not questioning the government’s power to hold Salim Ahmed Hamdan “for the duration of active hostilities” to prevent harm to innocent civilians. But, it said, “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”

That quotation was from the main opinion, written by Justice John Paul Stevens. That opinion was supported in full by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter. Justice Anthony M. Kennedy wrote separately, in an opinion partly joined by Justices Breyer, Ginsburg and Souter. Kennedy’s opinion did not support all of Stevens’ discussion of the Geneva Convention, but he did find that the commissions were not authorized by military law or that Convention.

Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas, the dissenters, each wrote an opinion.

Any suggestions on: 1) Who will be the first person to accuse the Court of aiding the enemy, or something equally stupid; 2) Who will be the first person to attack the court for relying on foreign law, i.e. the Geneva Conventions; 3) How long it will take for 1 and 2 to occur; 4) How many times over the next few weeks we are going to hear the usual catch phrases, like “activist courts” “liberal judges” “legislating from the bench” “judicial overreaching” “national security” “important part of the War on Terror” and “9-11″?

Another Proffesional

From the B’ham News: 

A federal grand jury Wednesday returned a three-count indictment against a former Florence police captain accused of using computers to access child pornography.

Basil Kenny Stanley, 49, of Killen was among the defendants named in indictments announced by the U.S. attorney’s office.

Stanley is charged with using his home and work computers to mail and transport child pornography from May 2005 to January 2006, according to U.S. Attorney Alice H. Martin. At the time, Stanley worked for the Florence Police Department.

I’ll stop beating this dead horse; I think I’ve made my point. Which is that cops are people just like all the rest of us. Putting on the uniform does not transform a normal person into an all wise ever virtuous defender of good. It just  gives a normal person extraordinary powers and responsibilities. Some cops are good people, who will use that power wisely. Others are crooks, who will abuse it. A few just want a good job, and will float along the path of least resistance. All of them will occasionally make mistakes. (They probably on occasion incorrectly spell words.) They are people.

Trusting our rights to people, as Justice Scalia says we should do, means our rights vary with the virtue of the person. Maybe the cops in your town would never break into the wrong home. Maybe they would never make race based arrests. Maybe they are good folks. But I don’t want to live in a society where the cops won’t arrest me without good reasons; I want to live in a society where they can’t arrest me without good reasons. I want to live in a society where the cops are under the law, not one where they are the law.