by TChris

The NY Times reminds us that the freedoms we enjoy are worth celebrating -- and worth protecting from further erosion.

People too often get the impression that the only people who use the nation's civil liberties protections are lawbreakers who were not quite guilty of the exact felony they were charged with. Perhaps we should thank the Bush administration for providing so many situations that demonstrate how an unfettered law enforcement system, even one pursuing worthy ends, can destroy the lives of the innocent out of hubris or carelessness.

Virtually every time the Bush administration feels cornered, it falls back on the argument that the president and his officials are honorable men and women. This is an invitation to turn what should be a debate about policy into a referendum on the hearts of the people making it. But this nation was organized under a rule of law, not a dictatorship of the virtuous. The founding fathers wrote the Bill of Rights specifically because they did not believe that honorable men always do the right thing.

Read the entire editorial here.

by TChris

California's prison system is a mess, as TalkLeft has frequently reported. A report prepared by a 40-member panel appointed by Gov. Arnold Schwarzenegger agrees, describing the prison system as "dysfunctional."

It presented a long-term strategy to improve public safety and save money by lowering one of the nation's highest reimprisonment rates of former inmates. It also placed a new emphasis on inmate education and rehabilitation.

The report proposes replacing the California Youth and Adult Correctional Agency with a new Department of Correctional Services run by a commission that would meet publicly. The proposed change is designed to end a structure in which prison wardens act as "feudal barons" who set their own rules.

The report also proposes reforms in the recruitment, training, and discipline of prison guards. The reforms seek to end the current "code of silence" that protects abusive prison guards, and to protect whistleblowers from retaliation.

by TChris

The Bush administration traded five terrorism suspects held at Guantanamo to Saudi Arabia in exchange for the release of five Britons and two others convicted of terrorist attacks in Saudi Arabia. This news follows Friday's denial by the spokesman for the National Security Council that the release of the Saudi prisoners was related to the release of the British prisoners.

The deal generated controversy within the administration, both as a matter of policy and in the selection of the prisoners to be released. Once the deal was finally made, the administration took pains to conceal its terms.

"We did not want to make it a clear quid pro quo swap, so we put a distance between them," one of the officials said.

The Saudis were released in May 2003. The Saudi government freed the British prisoners three months later.

There's hope:

On Sunday, the Ansar al-Sunna Army - a group that has claimed responsibility for past suicide bombings - said on its official Web site that it was not behind Saturday's statement. "In order to maintain our credibility in all issues we declare that this statement that was attributed to us has no basis of truth," it said. "Any statement that is not issued through our site, doesn't represent us," it said. The statement did not say whether Ansar al-Sunna Army is the group that snatched the 24-year-old Hassoun.

Here are some blogs following the story yesterday and today as events unfold:

The Moderate Voice
Dean's World
Back Country Conservative
Chris Short
Outside the Beltway
Wizbang Blog
Amanda Doherty (heads-up: several blogs have reported the goregous girl in the picture and described as the author is not the author of the blog and that the real author is her ex-boyfriend--we don't really care one way or the other)

Here is our report from yesterday. Classical Values writes why he will watch the video if there is one. There continues to be considerable debate in the blogosphere over whether to watch beheading videos. We don't choose to. Others do. If you want to watch, Ogrish is a site that carries them. The site contains ads depicting explicit p*rn, so be forewarned.

John Kerry is on the campaign trail. You can follow the progress here. Don't forget to "put your money where your mouse is" and contribute today.

Death on the 4th of July
The Story of a Killing, A Trial, and Hate Crime in America
by David Neiwert

Just released, it's time to order your copy. Journalist and Author David Neiwert is known to many as the writer of the blog Orcinus. Here's a snippet of what the book is about:

On July 4, 2000, Minh Hong and his twin brother, Hung, arrived in Ocean Shores, Wash., to celebrate the holiday. When they stopped at a convenience store to buy fireworks, they were met by a group of drunken young white men—who resembled skinheads—yelling racial slurs. A fight erupted, leaving the leader of the group of white men, Chris Kinison, dead. Minh Hong was charged with manslaughter for killing Kinison, and suddenly the victim of a hate crime became the suspect in a criminal trial. Freelance journalist Neiwert, who became acquainted with the Hong family through eating at their teriyaki shop in Seattle, provides a fast-paced account of the events surrounding this altercation and Hong's trial. The circumstances surrounding the events of that day divided the town, uncovering racist feelings below the thin veneer of smalltown sociability.

P.S. David advises us that TalkLeft is cited in the book in a footnote, we think it's for this post or this one in which we outlined our opposition to enhanced criminal penalties for hate crimes.

Professor Berman of Sentencing Law and Policy reports on two post-Blakely decisions in New York, one from the Eastern District, US v. Medas, 2004 U.S. Dist. LEXIS 12135 (E.D.N.Y. July 1, 2004) in which:

District Judge I. Leo Glasser discusses Judge Cassell's Croxford opinion and states that he is "driven to arrive at the same conclusion [that the FSG are unconstitutional] for the reasons stated by Judge Cassell in a language that is eloquent in its simplicity and clarity."

Judge Glasser discusses this issue in a fascinating context. Apparently he has a jury deliberating in a criminal case now, but "immediately after the jury retired to deliberate the government submitted a 20 page Supplemental Verdict Sheet with a request that it, too, be provided to the jury. That Supplemental Verdict Sheet, the government urged, was the legitimate offspring of Blakely." After explaining that the government's "pre-Blakely indictment does not allege the enhancing sentencing factors the government now requests be submitted to the jury post-trial" and that "no mention was made of those factors during the trial," Judge Glasser refuses to submit the Supplemental Verdict Sheet to the still deliberating jury.

The second decision is from the Southern District of New York:

Sentencing Law and Policy reports:

Jason D. Hawkins, AFPD in the Northern District of Texas was kind enough to send along his Supplemental Objection to a Presentence Report that he just filed. (In Word); Wordperfect version is here. I've already found available a sample Defendant's Memorandum in Aid of Resentencing (html) courtesy of The Office of the Federal Public Defender for the District of District of Columbia.

If you are going to download the Word or Wordperfect versions of documents, we've found it helps to have the program already open on the computer before downloading. We prefer Wordperfect, and love the new WP12 because it will save documents in Word or WP and opens Word documents easily. It also handles .pdf docs which we hate because they are slow to load and slower to print and a pain to scroll through and often "locked" so you can't cut and paste from them.

by TChris

The Bush campaign's effort to use churches as field offices (TalkLeft discussion here) is offending members of the Southern Baptist Convention.

The Bush campaign defended a memo in which it sought to mobilize church members by providing church directories to the campaign, arranging for pastors to hold voter-registration drives, and talking to various religious groups about the campaign.

"The bottom line is, when a church does it, it's nonpartisan and appropriate. When a campaign does it, it's partisan and inappropriate," [said Richard Land, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission]. "I suspect that this will rub a lot of pastors' fur the wrong way."

Others are concerned that the tax exempt status of a church might be jeopardized if it became entangled in partisan political activities. Probably not much chance of that happening if they're able to help Bush get reelected.

by TChris

The Army has charged three soldiers with manslaughter and a fourth with assault.

[I]nvestigators concluded that the soldiers had transported the two Iraqis to the bridge and pushed them off. Mr. Fadhil drowned, and Mr. Fadel swam ashore ....

The four were also charged with lying about their actions.

These crimes (and others described in the linked article) raise questions about jurisdiction over soldiers who commit crimes against Iraqis now that Iraq is "fully sovereign."

Despite an agreement to consult on military matters, Iraq and the United States lack a formal accord governing the status of foreign forces and are relying on an American occupation directive covering several important matters. But no commander believes American troops will be subject to Iraqi justice at this time.

Why doesn't a "fully sovereign" country have criminal jurisdiction over crimes committed against its citizens on its own soil?

by TChris

Linda Greenhouse opines that this was the term in which Chief Justice Rehnquist lost his court.

One statistic is particularly telling. There were 18 cases this term decided by five-member majorities .... Of the 18 cases, Chief Justice Rehnquist was in the majority in only eight.

Blakely is among the latest of the 5-4 decisions in which Rehnquist's reading of the Constitution failed to command a majority. A court on which Rehnquist is a frequent dissenter must be doing something right. Greenhouse offers a lengthy analysis of Rehnquist's waning influence upon the Court's decisions.

by TChris

Forced by the Supreme Court to respect the rights of Guantanamo detainees, the Bush administration has grudgingly agreed to let 13 lawyers visit their uncharged clients.

Thomas B. Wilner ... who represents the 12 Kuwaitis who won the right to federal court review, said, "I'm pleased that at long last the government is beginning to act reasonably." He added that the government had also agreed to an early visit by a lawyer for the 13th prisoner, an Australian who was involved in successfully challenging the administration's contention that Guantánamo was outside the reach of United States law.

The Center for Constitutional Rights, representing more than fifty Guantanamo detainees, filed habeas petitions on Friday "seeking early hearings on whether eight prisoners at Guantánamo have been lawfully detained." While the administration would prefer to substitute its own "annual review of the detentions" for judicial review, lawyers for the detainees will insist that federal courts do their job by acting as a check against the arbitrary use of power by the executive branch of government.

Jose Padilla's lawyer on Friday filed a new habeas petition in Charleston, S.C., having been told by the Supreme Court that Padilla's original petition was filed in the wrong district.