The Senate Rules Committee, by a vote of 10 to 0, voted today to limit filibusters . Notwithstanding that Democrats oppose the limit, none of the nine democrats on the committee attending the meeting. The matter will now go to a full floor vote.

A Senate committee with all its Democratic members absent voted to limit filibusters of President Bush's judicial nominees Tuesday, a move Republicans hope will usher future federal judges through the Senate faster, even if Democrats want to stop them.

The Rules Committee officially voted 10-0 for the measure, which would reduce the number of senators needed to force a vote on a judicial nominee with each successive vote until only a 51-member majority is needed.

....Minority Leader Tom Daschle of South Dakota had another commitment he had to attend to, and Democrats did not organize a boycott of the vote, spokeswoman Ranit Schmelzer said.

The nine democrats who missed the meeting are: "...Daschle, ranking Rules Committee Democrat Chris Dodd of Connecticut, Robert Byrd of West Virginia, Daniel Inouye of Hawaii, Dianne Feinstein of California, Charles Schumer of New York, John Breaux of Louisiana, Mark Dayton of Minnesota and Richard Durbin of Illinois."

[link via How Appealing]

The Administration continually intones the national security mantra when trying to justify its secret policies. Last week, the U.S. Supreme Court said that's okay in the case of the detainees, Center for National Security Studies v. DOJ . More caution is needed.

Via Victor at Balasubramania's Mania:

Timothy Lynch has an interesting Wash Post piece about a bid to reopen a half-century old case involving the government's withholding of information based on the national security rationale. The long and short of the story is that in that case a plaintiff sued under the Federal Tort Claims Act. In refusing to turn over certain documents the U.S. government claimed a national security privilege. The case resulted in a Supreme Court decision reaffirming the national security privilege (the government's right to withhold information based on national security interests). Years later, the national security claim was found to have been bogus (the documents contained nothing that could be reasonably characterized as classified). And now the plaintiffs are seeking to reopen the case. Interesting story that should serve to caution the courts and citizens against blindly accepting the national security rationale. According to Mr. Lynch, "[t]he only way to minimize . . . abuses is to treat legal claims of national security with a healthy dose of skepticism."

States are increasingly eliminating theirstatutes of limitations on crime.

The U.S. Supreme Court will tell California by June 30 whether a 205-year-old standard allows the state to prosecute a 74-year-old man on 48-year-old child molestation charges.

At least 10 states will be debating the removal of the statute of limitations on offenses in which DNA evidence is found at the crime scene. Another 20 states have passed similar laws since 2000. Eighteen states are deciding whether to remove time bars to pursue old child abuse cases. Another 12 states have done so.

On the federal level, the Domestic Security Enhancement Act of 2003, which amends the USA Patriot Act of 2001, eliminates or extends the statute of limitations on a wide variety of crimes.

A statute of limitations is essentially a time bar that prevents prosecution for crimes that were committed before a certain date. For example, in federal drug crimes, the statute of limitations is five years. If the police search your house and find drugs today, they have five years from today to charge you with a crime. After that, they are time-barred from prosecuting you.

The time bars ensure that law enforcement resources are efficiently used: when eyewitness memories are clearest and defendants' abilities to defend are most favorable. It is a common law concept that grew out of efforts by British royalty in the 1600s to persecute political dissenters by resurrecting old crimes and by criminalizing previously acceptable behavior.

The move by states to eliminate statutes of limitations corresponds to the advent of DNA testing. While DNA databases are being built, there are over 1 million untested samples. Many are from crimes in which the statute of limitations has expired.

We strongly object to the removal of statutes of limitation, on legal grounds. On a more gut level, we concur with this statement, quoted in the article:

"Are we so bloodthirsty that we have to right every conceivable wrong?" asked Lawrence S. Goldman, president of the National Association of Criminal Defense Lawyers.

"....Has our society become so victim-oriented that we concede to the government fundamental civil liberties so that we can have vengeance every day of every week?"

Yesterday the Supreme Court upheld an act of Congress requiring libraries to install filtering devices on computers that prevent users from accessing pornography sites, so long as the devices could be easily disabled by a librarian at the request of an adult.

In three sets of opinions, the splintered court held that forcing libraries to install anti-smut software does not violate the First Amendment rights of library patrons even though the filters also block out legitimate Web sites. The 6-3 ruling, which upholds a law passed three years ago, affects 119,000 libraries in the nation that receive federal funds, including many in the Bay Area.

....Library groups and patrons challenging the law protested that it also blocked out access to information on health, politics, gays and lesbians, and other legitimate Web sites.

The San Francisco Chronicle reports that non-compliance with the law is punished by loss of federal funds. Libraries willing to forego federal funds don't have to install the devices.

Judith Krug, director of the Office of Intellectual Freedom for the American Library Association, predicted that many libraries might forgo federal funds rather than install the filters. Libraries -- including school libraries -- have received about $1 billion in federal funds in the last four years, about 1 percent of their total budget.

In San Francisco, Susan Hildreth, city librarian for the public library, said the library might give up the $240,000 it receives each year in federal funds, about half of the $430,000 the library budgets for telecommunications and Internet costs. Hildreth said that after Congress passed the filter law in 2000, San Francisco supervisors had adopted legislation that prohibits Internet filters being installed on computers used by adults or teenagers. "I don't believe our library commission or our Board of Supervisors would really be interested in the use of filters," she said.

What about poor communities that need the federal money?

"The impact of this will be much worse on poor communities rather than rich communities," said Christopher Hansen, an attorney with the American Civil Liberties Union, which represented the Santa Cruz public library and several other libraries and patrons challenging the law.

Where does science end and science fiction begin in the Adminstration's War on Terror? Get ready for lie-detecting dogs and radar-detecting bullets, courtesy of the anti-terror agency Technical Support Working Group.

What is this group? From its " about page":

The Technical Support Working Group (TSWG) is the U.S. national forum that identifies, prioritizes, and coordinates interagency and international research and development (R&D) requirements for combating terrorism. The TSWG rapidly develops technologies and equipment to meet the high-priority needs of the combating terrorism community, and addresses joint international operational requirements through cooperative R&D with major allies.

Mission Statement

Conduct the National Interagency research and development program for Combating Terrorism through rapid research, development, and prototyping.

Identify requirements, develop solutions, and execute projects. Customize technology to specific user needs.

According to the Wired News article referenced above:

"TSWG is, in effect, a kind of mini-DARPA, except it is more clearly focused on a counterterrorism mission," according to Stephen Aftergood, a senior research analyst at the Federation of American Scientists (FAS).

TSWG funds projects that range from the commonsensical, like better chemical weapons sensors, to the far out, like intelligent video camera arrays.

...TSWG's budget has grown from $8 million in 1992 to $111 million in 2002 and to over $200 million in 2003. Still, TSWG, under the joint control of the Pentagon and the State Department, remains a tiny operation when compared to DARPA, which will spend almost $2.8 billion dollars on research this year.

Some of the proposals make good sense. Others are way out there. Among the currently funded projects are " bullet-detecting radar to prevent assassinations, a project to extract DNA from fingerprints, a cooling system for body armor and a mass transit surveillance camera system. "

U.S. District Court Judge John S. Martin, Jr. (Southern District, New York) is leaving the bench after 16 years. Instead of going to senior status, he is returning to private practice. Many other federal judges are making the same decision. He explains why in an op-ed in today's New York Times, titled Let Judges Do Their Jobs:

For most of our history, our system of justice operated on the premise that justice in sentencing is best achieved by having a sentence imposed by a judge who, fully informed about the offense and the offender, has discretion to impose a sentence within the statutory limits. Although most judges and legal scholars recognize the need for discretion in sentencing, Congress has continually tried to limit it, initially through the adoption of mandatory-minimum sentencing laws.

Judge Martin notes that Congress has repeatedly tried to limit the sentencing discretion of judges--from the 1984 Sentencing Reform Act that resulted in federal sentencing guidelines, to its refusal to fix the crack/powder cocaine sentencing disparity, to the recent limitations on judicial discretion tacked onto the Amber Alert bill (the Feeney Amendment.)

Every sentence imposed affects a human life and, in most cases, the lives of several innocent family members who suffer as a result of a defendant's incarceration. For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice.

Judge Martin is absolutely correct in his charge that Congress repeatedly has shown contempt for the judiciary. It is with sadness that we report his final statement,

When I took my oath of office 13 years ago I never thought that I would leave the federal bench. While I might have stayed on despite the inadequate pay, I no longer want to be part of our unjust criminal justice system.

Senate Judiciary Committee likely to vote on the Victims' Rights Amendment VRA) to the U.S. Constitution (S. J. Res. 1) this week. Ask your local prosecutor to call their Senators and oppose.

The latest version of this joint resolution (the term given to all proposed constitutional amendments) would give victims of violent crimes: (1) the right to notice of proceedings involving the crime and of prisoner release or escape; (2) the right not to be excluded from proceedings involving the crime and, with respect to certain proceedings, the right to be heard; and (3) the right to "adjudicative decisions" that consider the victim's safety, interest in avoiding delay, and claim to restitution.

While the National Association of Criminal Defense Lawyers (NACDL) agrees that victims must be treated with respect, we have always maintained that the VRA would dangerously abrogate the rights of those accused of crime and tie the justice system in knots. The amendment is equally problematic for prosecutors. The unfunded mandates and potential unintended consequences that would be enshrined by this proposal would wreak havoc on the administration of prosecutor's offices. Specifically --

1. Interference with prosecutorial discretion. To be sure, the amendment would be used to call into question the judgment of prosecutors about how a case is to be handled. Allowing victims to protest against what they perceive to be lenient plea bargains, to force cases to trial before either side is prepared, and to interfere in other prosecutorial and judicial decisions every step of the way would tie up the courts and perhaps derail important investigations.

2. Increased workload without increased resources. As victims scuttle proposed plea deals, the number of cases going to trial will increase. And the right to "adjudicatory decisions" on issues like restitution, even when the defendant is penniless, will consume scarce resources with no benefit. Moreover, the proposed amendment is vague and confusing and will be litigated without end; for example, is the "victim" in a murder case the deceased or the family? Questions like these will become the focus of judges and practitioners for generations to come. Aside from the additional litigation costs and workload, whenever parole or release is to be considered, prosecutors' offices will share the onerous burden of identifying and tracking down victims years after the offenses were committed. These mandates are completely unfunded.

A man from Qatar who has been held since 2001, first on a material witness warrant, and then under a criminal indictment charging him with making false statements to the FBI, has been designated by the Administration as an enemy combatant, joining the ranks of Jose Padilla and Yaser Hamdi.

Ali Saleh Kahlah al-Marri is now in the custody of the Defense Department where presumably he will await a trial by military tribunal.

The Government concedes they have no evidence linking al-Marri to 9/11. It believes he was planning later harm to the U.S., which belief is based on his having met Osama bin Laden at a training camp, and offering his services to him.

Why not charge him in U.S. District Court with conspiracy to provide material support to terrorists? A secret military proceeding hardly seems necessary --is the Government hiding something? The secrecy with which this Administration is running its war on terror is unprecedented. We hope Congress demands to take a look at this case.

[thanks for the tip goes to our former reader Cliff, who won't post here anymore because we are not tolerant enough of his differing viewpoint. He says he finds this case beyond the pale. That's quite a statement coming from Cliff. We've previously extended our appreciation to Cliff for the time he spent reading TalkLeft and invited him back to the comment section, but so far, he's not interested. The offer stays open.]

Nat Hentoff's new column in the Village Voice, Justice Denied at the Source is a must-read. He begins,

"The clear lesson is that the government, in its understandable and laudable resolve to protect our security, cannot be relied on to protect our basic rights and liberties." Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, responding to the Justice Department inspector general's report on the post-9-11 mass imprisonment of immigrants with roots in this country

"We did not violate the law." Attorney General John Ashcroft, testifying before the House Judiciary Committee on June 5.

The column addresses the Inspector General's report on the treatment of detainees and the mounting evidence that Ashcroft is unfit for the office he holds. Congress may be beginning to take note.

In a 5 to 4 decision, the U.S. Supreme Court has upheld Michigan's affirmative action policy .

The Supreme Court on Monday upheld a university law school admissions policy that gives minorities an edge, ruling that race can be one of many factors that colleges consider when selecting their students.

The ruling in the law-school case preserves the concept of affirmative action for minorities who might otherwise be underrepresented on top campuses, but makes clear that racial preferences must be used sparingly.

The 5-4 ruling endorsed a program at the University of Michigan law school meant to ensure a "critical mass" of minorities on campus. The program is not an illegal quota, the high court said.

"The Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational
benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or §1981."

For analysis of the opinion, we recommend checking in with Howard Bashman of How Appealing and Scotusblog after they have had a chance to digest it.

The case is Grutter v. Bollinger and the opinion is available here.

People for the Amercian Way makes a great poiint about the decision:

This case was about the value of a diverse educational environment in a country where diversity was once unwelcome. By upholding affirmative action, this Court has protected opportunities for millions of Americans who are still victimized by the lingering effects of discrimination," said Neas. "This decision highlights how critical the next appointments to the Supreme Court will be. As demonstrated by this case, challenges to civil rights and other rights are increasing. The vote of a single justice can have a massive impact on Americans' rights."

In a companion case, Gratz v. Bollinger, the Court struck down the undergraduate admissions program. Reuters reports on the differing rulings:

But in the undergraduate case, Chief Justice William Rehnquist declared for the majority that the manner in which the university considered the race of applicants violated the constitutional equal protection provisions. In the undergraduate case, black, Hispanic and Native American applicants get 20 extra points out of a possible 150 points under a selection index that considers academics, test scores and other factors, including race. In the law school case, the admissions process does not involve a point system, but the university seeks the enrollment of a "critical mass" of minority students, which has ranged between 10 percent and 17 percent of each class.

The vote was 5-4 in the law school case and 6-3 in the undergraduate case.

Update: Clarence Thomas voted against affirmative action. Here are excerpts from the undergraduate decision--including Justice Ginsberg's dissent.

Evan Wright, an embedded reporter for Rolling Stone, traveled through Iraq with a platoon of Recon marines. Rolling Stone is publishing his account in two parts, the first of which is Killer Elite.

The report is definitely up close and personal, particularly as to the actions, reactions, thought processes and dialogue of the marines. It's also one that makes us wince repeatedly at their' giddiness and glee when it comes to killing the enemy.

It's worth the read, particularly for the chance to get inside the marines' heads. Be forewarned though-- these heads are a little twisted. Good job by Wright, and Part Two will be out shortly.

Update: Terry in the comments section has informed us that we should never call marines "soldiers" and vice-versa. So, we have edited the post to call the men "marines" throughout.

Update: There are more than a few marines contributing in the comments section of this post. Welcome to you all. One favor, if we use the f* word or other obscenities, we risk getting blocked at law firms and businesses by censoring software. So, if you're using a word that censors would pick up on, please use a * or two instead of a few letters. Eg, sh*t or f**ng --otherwise we have to go in and edit your comments and do it ourselves and it's too much work. But we're glad to have your viewpoint.

Last Thursday we reported that President Bush in May issued an executive order that prohibited American lawyers from defending war crime suspects at the International Criminal Tribunal for the former Yugoslavia (ICTY) at The Hague, in The Netherlands . We're pleased to report the Administration rescinded a portion of its order.

The U.S. government lifted a ban on American lawyers defending war crimes suspects after talks with the Yugoslav tribunal's president, a court spokesman said Friday. The ban, part of an executive order seeking to halt support of individuals blacklisted by Washington, had derailed two cases since it was made public earlier this week.

But during talks between the Treasury Department and tribunal President Theodor Meron, guarantees were given that lawyers would not be prosecuted for their work at the tribunal, spokesman Jim Landale said. ''Authority has been given by the Treasury for U.S. attorneys to practice here at the tribunal,'' Landale said. ''I don't think we will have any problems in this matter the future.''

The new authorization requires that the U.S. lawyers be paid from funds outside the U.S. and outside the control of any person in the U.S. Also, lawyers have to apply to the U.S. Government for a license to represent the Yugoslav suspects. While there may be some issues remaining to be resolved with the license requirement, this is a definite improvement.