Jack Balkin at Balkinization reports on Bush's "Pay-As-You-Go War":

The Bush Administration has been refusing to answer questions about how much the war with Iraq will cost. Outside studies have placed the cost as ranging from anywhere from $50 billion ( cheap, quick victory, short, easy, reconstruction) to more than a trillion dollars (tough, difficult victory, long, difficult reconstruction)....

The White House argues that it shouldn’t have to provide any estimates because the timing and length or war, and the duration and nature of post-war peacekeeping and reconstruction, are currently unknown. Therefore, the President should be allowed to go ahead with the war and Congress will get the bill later, and, of course, it is expected to pay that bill in full....

Our Constitution isn’t perfect, but separation of powers is one of the most important features Americans have for checking potential abuses of authority. Congress should not allow the President to do an end run around our constitutional system by stonewalling on crucial questions of war and peace.

Someone recently old us that in Bush's giant deficit budget, not one penny is earmarked or included for the War in Iraq. Is that true? Where is the money going to come from? We may not be financial whiz kids, but even we know it doesn't grow on trees.

We received this from Appellate Law Whiz Peter Goldberger (Ardmore, PA):

The front page of today's Philadelphia Inquirer features a most interesting story about a petition filed in the Supreme Court to reopen a case, decided 50 years ago next week. In US v Reynolds, 345 U.S. 1 (1953), survivors of three people killed in an Air Force plane crash sued the government. In discovery, they sought access to the report of the Air Force's own investigation into the crash. The government resisted, saying they had a privilege based on military secrecy. The Third Circuit upheld the trial judge's order that the government turn the report over to him to see whether the privilege claim was justified, but the Supreme Court reversed, holding the courts could not even question or examine the military's claim. For lack of this evidence, the case was dismissed.

Recently, a grandaughter of one of the victims discovered a website collection of declassified Air Force accident reports, including the one withheld in 1953. Lo and behold, there was no discussion of any military secrets, but it did show the Air Force had concluded that the plane wasn't safe to fly. In other words, the report had been suppressed to protect the Air Force from embarrassment and liability, not to protect the national security, as the government had falsely claimed to the Supreme Court.

The same big, blue-blood Philadelphia law firm which handled the case 50 years ago, has filed a motion to reopen the case in the Supreme Court on the basis of fraud. We will be interested to see what happens.

Meanwhile, perhaps reading the motion will trigger some skepticism when the Court' examines the Fourth Circuit's recent decision in the Yaser Hamdi habeas case -- which also concluded that the judge could not scrutinize or question a conclusory government affidavit (the "Mobbs declaration") asserting that American citizen Yasser Hamdi (or Jose Padilla) can be labeled an "enemy combatant" and then held incommunicado, without access to counsel, indefinitely without court proceedings.

The Court might also have learned this lesson from the later history of the Korematsu and Hirabayashi travesties of 1943. Those cases upheld the Japanese internment program during WWII, based on affidavits from military officers of Japanese-American saboteurs and secret agents. Those affidavits also were false, and the military's own reports contradicting them were destroyed -- all but one copy, as was revealed years later and discussed in the 9th Cir opinion affirming the grant of Hirabayashi's coram nobis petition: Hirabayashi v. US, 828 F.2d 591 (9th Cir. 1987).

Yet another cautionary tale for our day, we'd say. Who remarked that "In war, truth is the first casualty"? Only a fiercely independent judiciary, prompted by independent defense attorneys, can protect us from law based on lies, maintain civilian control over military power, and keep the win-at-any-cost military mentality, which has nothing but contempt for truth and fairness, from destroying our democracy.

Scotus Blog also reorted on Peter's analysis today.

[comments now closed.]

Mark Fiore has become our favorite animated cartoonist. His newest is a must view --"Execution Alive and Well"

[link via Gideon's Promise]

"GUILDERLAND, N.Y., March 5 - The management at Crossgates Mall Wednesday asked the Guilderland Police Department to drop the trespassing charges against a Selkirk man. This came after about 100 protestors descended on Crossgates Mall that afternoon. Their "Mall Walk for Peace" protested the arrest of 60-year-old Stephen Downs, who was charged with trespassing Monday night when he wouldn't leave the mall after he refused to remove his T-shirt bearing a peace message." [link via Atrios]

Press Release, National Association of Criminal Defense Lawyers, on today's Supreme Court Decisions:

Decisions symptomatic of ill-advised direction of justice system

Today’s Supreme Court decisions feed wrong-headed punitive frenzy

Washington D.C.—In response to two decisions each in cases addressing Megan’s laws and three-strikes laws by the U.S. Supreme Court today, Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, issued the following statement:

“Today’s Supreme Court decisions reinforce the unhealthy abandonment of rehabilitation as a goal of the criminal justice system. By rubber-stamping the harsh dictates of politically-motivated state legislatures, the Court has upheld life punishments, although of different types, for individuals who have successfully completed their prison terms for sex-related crimes, as in the two Megan’s Law cases, or who have been convicted of only relatively minor crimes, as in the three-strikes cases.

“If we are going to discard the hope for rehabilitation, we should do so explicitly, and rename every state ‘department of corrections’ the ‘department of punishment.’

“A majority of the Supreme Court appears to have forgotten that the Constitution was adopted to protect individuals from the excesses of the state. By its decisions, the Court minimizes the role of the Constitution and indeed its own role as the ultimate protector of our rights.”

Why is this just now coming to light? It screams "torture" at us, but we're willing to hear what Secretary Rumsfeld has to say before we get really angry.

Military coroners have determined that the deaths of two detainees while in U.S. custody in Afghanistan were homicides, CNN has confirmed.

A criminal investigation into the December deaths of the two men is in its final stages, but a U.S. military source said it is not clear whether anyone will be charged. One senior military official said, "This investigation may not go well for us.

The men died shortly after arriving at Bagram air base north of the Afghan capital, Kabul. The first man died December 3 of a pulmonary embolism and the second one December 10 of a heart attack. Autopsies found that "blunt force trauma" was a contributing factor in both cases, military sources said.

U.S. military police run the Bagram detention facility.

Bump: We wrote this at 9:20 Tuesday night, but are bumping it to today since so many of you have written us about it and news keeps developing.

Update Here are the e-mail addresses for the City Managers of Guilderland, NY (the town where the mall is). Tell them what you think.

runionk@townofguilderland.org
guild200@nycap.rr.com

(email addresses courtesy of Mike in the comments section)

Update: Instapundit has lots more, including why he doesn't think there's a first amendment violation here--and tips on how to contact the mall tand stores in it o express your opinions about this.

If we didn't read it on CNN's website, we wouldn't believe it. A lawyer was arrested late Monday and charged with trespassing at a public mall in the state of New York after refusing to take off a T-shirt advocating peace that he had just purchased at the mall.

According to the criminal complaint filed Monday, Stephen Downs was wearing a T-shirt bearing the words "Give Peace A Chance" that he had just purchased from a vendor inside the Crossgates Mall in Guilderland, New York, near Albany.

"I was in the food court with my son when I was confronted by two security guards and ordered to either take off the T-shirt or leave the mall," said Downs.

When Downs refused the security officers' orders, police from the town of Guilderland were called and he was arrested and taken away in handcuffs, charged with trespassing "in that he knowingly enter(ed) or remain(ed) unlawfully upon premises," the complaint read.

Downs said police tried to convince him he was wrong in his actions by refusing to remove the T-shirt because the mall "was like a private house and that I was acting poorly.

"I told them the analogy was not good and I was then hauled off to night court where I was arraigned after pleading not guilty and released on my own recognizance," Downs told Reuters in a telephone interview.

Kevin at Getting In the Game has more.

Via Instapundit, we find Fight Bombs, Not Bongs

Those who light pot pipes are not our enemies. They are our colleagues, neighbors, friends, and loved ones. In short, they are Americans who should be protected rather than persecuted by federal busybodies who desperately need to focus on first things. John Ashcroft, John Brown, and this country's other drug warlords should ask themselves what would be worse for America's citizens: more bong hits or more body parts.

"The Supreme Court ruled 6-3 Wednesday that states may put pictures of convicted sex offenders on the Internet, a victory for states that use the Web to warn of potential predators in neighborhoods. In a separate narrow ruling, the court turned back a challenge from offenders who argued they deserved a chance to prove they aren't dangerous to avoid having their pictures and addresses put on the Internet."

"The decisions came in the Supreme Court's first review of what are known as Megan's laws - and have far-reaching implications because every state and the federal government have sex-offender registry laws."

The cases are Connecticut Department of Public Safety v. John Doe, 01-1231, and Otte v. Doe, 01-729. The opinions are available here.

The Connecticut case (9-0 ruling) leaves open a door for a future challenge as it "did not address the constitutionality of requiring offenders to register without holding separate hearings to determine the risk posed by sex criminals who have completed their prison sentences before putting them in a registry."

We are very disappointed in today's Supreme Court 5-4 ruling upholding California's three-strikes laws under which felons convicted of a minor crime, such as stealing a few videos or food, can be sentenced to life in prison. The majority of the court said this does not violate the 8th Amendment ban against cruel and unusual punishment.

"The California law requires a sentence of 25 years to life in prison for any felony conviction if the criminal was previously convicted of two serious or violent felonies. It also permits judges to treat as felonies a third offense that would otherwise be a misdemeanor."

The dissenters were Stephen Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsburg.

The cases are Lockyer v. Andrade, 01-1127, and Ewing v. California, 01-6978.

Leonardo Andrade, who received 50 years in jail as a punishment for stealing $153.00 of videos for his children to watch. Andrade has already served seven years for his shoplifting episode and will be 87 before he is due for release. Here's more on his case and the unfairness of the three-strikes laws.

Since the court has ruled these draconian laws are constitutional, it is up to the state legislature to change them. Efforts are underway. Visit Families to Amend California's Three-Strikes for more, including this latest development.

"After a lengthy and passionate debate, the Assembly Committee on Public Safety passed AB 112 (Goldberg) by a vote of 4-3. AB 112 would require that all strikes be serious or violent in order to subject a defendant to three strikes enhancement. The bill also sets up a process of re-sentencing for those who are currently serving a life sentence for a non-serious and non-violent felony. Channels 3, 10, and 13 covered the hearings. The bill will go next to the Assembly Committee on Appropriations, no hearing date been set in Appropriations."

Some of our prior coverage and objections to three-strike laws are here and here.

Received from People for the American Way:

People For the American Way Foundation Attorneys are Counsel to Plaintiffs in Internet Filtering Case Before Supreme Court

The Supreme Court is hearing arguments today in a case involving free speech
and Internet censorship in public libraries. Last year, a three-judge federal court ruled unconstitutional the Children's Internet Protection Act (CIPA). People For the American Way Foundation (PFAWF) and the law firm of Jenner & Block filed the lawsuit challenging CIPA on behalf of the American Library Association, other library associations, and library patrons.

CIPA, passed by Congress in 2000, would have required public libraries to install computers with filtering software to block access to material in cyberspace deemed to be "harmful to minors." If libraries failed to outfit their computers with the software, they stood to lose federal funding.

The three-judge court, sitting in Philadelphia, unanimously ruled that CIPA would have blocked all library patrons from gaining access via the Internet to an array of material that is protected by the First Amendment. The court also enjoined federal agencies from withholding funds from public libraries that have not installed the software on their computers.

The ACLU also challenged CIPA, and its suit was consolidated with the PFAWF-ALA suit for trial before the three-judge panel. Any appeal of the panel's decision will go straight to the Supreme Court.

From today's Chicago Tribune,

Moving on major anti-crime initiatives, a key Senate committee voted Tuesday to approve sweeping death penalty reforms, mandate taping of interrogations in murder cases and require police to record the race of every driver in traffic stops over the next three years."

In a busy legislative day, the Senate Judiciary Committee also voted to let police stop motorists simply for failing to wear their seat belts and to restrict young teen drivers from getting behind the wheel late at night and with carloads of their friends.

The death penalty reforms represented a major step toward overhauling the state's broken criminal justice system and culled key elements from separate task forces put together by former Gov. George Ryan and Senate Democrats, said Senate President Emil Jones (D-Chicago).