We highly recommend John Payton's op-ed piece in today's Washington Post, "The Rule of Law"

Among its finer points:

"In two federal cases the Department of Justice is asserting that the president has the power to detain, indefinitely and without any charges, any person, including any United States citizen, whom it designates an "enemy combatant." The Justice Department claims that persons so designated may be denied counsel and held incommunicado. Furthermore, as the U.S. Court of Appeals noted with clear surprise, "The government . . . submits that we may not review at all its designation of an American citizen as an enemy combatant." This claim of unreviewable power is unprecedented and extraordinary."

Payton tells us to put aside thoughts of Hamdi and Padilla for the moment.

"I want to talk about the rest of us. I want to talk about our liberty and our rights. What would happen to any of us if we were somehow designated an enemy combatant and detained without charges, denied counsel, and held incommunicado at a military facility? In these circumstances would you have any rights? Could someone on your behalf successfully challenge your detention in court? (Obviously, you could not do so yourself if you were held incommunicado.) It is the position of the Justice Department that no such challenge should be allowed -- that the decision of the president to classify you as an enemy combatant is not subject to any meaningful review. Simply put, an innocent person falsely accused of being an enemy combatant would have no recourse."

We also agree with Mr. Payton that:

"This is an extraordinary moment. If, in response to the challenge of terrorism, we transform ourselves into a society that eliminates the rule of law and concentrates in the president unchecked power to detain people without charges or judicial review, we will have become our antithesis. The irony would be profound."

Alaska may become the first state to determine the winner of an election by instant runoff.

Robert Prather, editor of News-Portal tipped us off to this "preferential voting" initiative because it is one of his "pet issues." He strongly favors it. We are just reporting on this one --you decide.

What it does: increases the likelihood of a third party candidate being elected

What it is: a change from majority voting to preferential voting

How it works: "Voters would pick their choices for an office in descending order from most favored to least favored.

If no candidate received more than 50 percent of the first-choice vote, then the lowest vote getter would be defeated. Election officials then would count the second choice votes of voters who picked the losing candidate and add those numbers to the totals for the remaining candidates.

The process would continue until one candidate received more than 50 percent."

It would not apply to the election of the Governor and Lieutenant Governor.

Here's the full text of the Initiative.

Who else uses it: the City of San Francisco, London and Australia.

Who's opposed: The Alaska League of Women Voters because of lack of public debate on the issue, it's more expensive, and it does not conform to the "one person one vote" principle set by the U.S. Supreme Court.

Who's In Favor: The Republicans and the third party candidates who believe it provides voters with "more candidate choices and eliminates the need for primaries and costly runoff elections." They also argue that this method will ensure that "every one who gets elected has a majority of the voter support."

Here are the arguments pro and con.

Alaska has a history of very close elections because it has six political parties and a lot of independent voters. August 27 is voting day on the initiative.

Since we haven't yet formed an opinion on this method of voting, we hope those of you more familiar with it will comment.

Whatever Alaska voters decide on the election reform issue, we hope they vote to legalize marijuana on Nov. 5--here's a full report on that initiative.

We also want to point you to Ballot Watch which is the Initiative & Referendum Institute's report on what's on the ballot and what may be headed there. It has a map of all 50 states and it provides information on "what measures have been proposed, what they're about, and where they are in the process.... You'll also find summaries of measures put on the ballot by your state legislature" and comprehensive overviews of upcoming hot issues. It also has a good internal search engine.

Update: See the comments sections for Robert Prathers' corrections to the linked AP article's information. For more information on run-off voting, he also points us to: the Center for Voting and Democracy

Instapundit asks if Jonathan Turley's op-ed piece last week alerting everyone to Ashcroft's possible plans to build prison camps for U.S. citizens who are declared by Ashcroft to be "enemy combatants" is hyperbole.

For the record, Instapundit is "opposed to the imprisonment of American citizens without trial. Unlike the imprisonment of foreign citizens, it is almost certain to have a deeply corrupting effect on American politics. "

About the Turley article he writes,

"ANOTHER INTERNET RUMOR? John Hawkins investigates Jonathan Turley's claim (via a Los Angeles Times op-ed) that Ashcroft and the Justice Department were planning prison camps and finds it wanting."

The issue according to Mr. Hawkins, who writes for the Right Wing News by the way, seems to be whether plans to build a separate wing that could accomodate 20 of such prisoners equals a "prison camp."

What number should it take, 25, 100, 500? Should the number of beds at the first such facility be the determinative factor of whether it is a camp? Could it serve as a model for future facilities? If 50 such facilities were contemplated, would they be camps?

We don't know if Ashcroft is planning camps or not. But if it looks like a duck.....

[comments now closed]

Last week an small town Ohio Judge dismissed a prosecutor's request to seek the death penalty in a murder case on the grounds that the County did not have the funds to pay for such a prosecution or to provide the defendant with the resources he would need to defend against one.
Yesterday the Ohio Judge reversed himself.

``The court finds that its concern as to financial impact was based upon prospective due-process considerations, rather than any actual deprivation,'' Simmons wrote in a one-page ruling."

Simmons issued his ruling just minutes after the Appeals Court dismissed, yes dismissed, the prosecutor's appeal of the judge's first ruling.

The prosecutor asserts Judge Simmons thought long and hard about this before the appeals ruling came down. How long and hard do you have to think to write a one page ruling?

State judges do not hold their positions for life. Could retention of his position have been a factor in the sudden turnaround? Does anyone know the Ohio process for selection and retention of Judges?

Dick DeGuerin, the outstanding Houston criminal defense lawyer, is taking on the fight against the IRS over the issue of how much information on our clients do lawyers have to turn over to the IRS.

"The case raises issues concerning the relationship between attorneys and their clients, such as how far does the attorney-client privilege go when it's time to report income to the IRS? Is a lawyer required to identify the source of legal fees in all instances or can such information be protected under the attorney-client privilege? And should a lawyer be assessed penalties for failing to disclose a client's identity when the attorney reasonably believes the client's identity is protected?"

"Section 6050I requires any person engaged in a trade or business who receives more than $10,000 in cash in one transaction (or two or more related transactions) to file Form 8300, which reports the transaction and identifies the name, address and taxpayer identification number of the person from whom the cash was received as well as the amount, date and nature of the transaction. "

We're weighing in on this one because we have strong feelings.

Criminal defense organizations and brave individual lawyers battled with the IRS for years over this. We lobbied Congress to get an exception for lawyer/client fees, to no avail.

It wasn't that lawyers didn't want to disclose the amount received or pay taxes on it. The objection lay in their belief that by identifying a client who paid a large cash fee for representation in a criminal case, they were setting the client up for further investigation and possibly another prosecution.

Just as problematic is the client who has not yet been charged with a crime but is under investigation or worried about becoming the target of an investigation. By identifying the client as the payor of a substantial cash legal fee, are we providing the "last link" in a chain of incriminating evidence that could result in that client's indictment? We think so.

As Houston lawyer George W. Connelly Jr., chairman of the tax controversy and litigation section at Chamberlain, Hrdlicka, White, Williams & Martin, who spent 15 years as a trial lawyer with the IRS, puts it,

"If you've ever seen a Form 8300, the amount of information stops just short of how tall the person is and what color their eyes are and what their ethnic derivation is. You've got name, rank, serial number, are they acting as a nominee for someone and so forth."

But after years of litigation in the 1990's, and a few differing federal district court opinions, the circuit courts of appeal weighed in, and the defense lawyers' position was doomed.

Most lawyers just stopped taking cash to avoid what they viewed as the Government's attempt to make them rat on their clients. Others kept taking cash and and gave the IRS the requested identifying information about their clients.

Kudos to Dick DeGuerin and his partner Lewis Dickson for taking on the IRS on this issue. They declared the cash fees, paid the tax but withheld the requested information about their clients. They paid a $25,000.00 penalty to the IRS to be able to have standing to sue the IRS in federal court to get it back. The IRS is now seeking over $400k in penalties from the firm for all the 8300 forms they filed in 1995.

The rules are that if the failure to file properly is shown to be due to "reasonable cause" as opposed to "willful neglect," the penalty for each filing is only $50.00. So even if an attorney intentionally disregards the reporting requirement, he will not be subject to any penalty if he can show reasonable cause for noncompliance. DeGeurin's firm filed every form required, and responded to every later IRS inquiry, with a written explanation of its belief there was reasonable cause to withhold the information.

"...The central issues in the case are whether the attorneys' failure to provide information on the Form 8300s by claiming attorney-client privilege amounted to intentional disregard of their filing obligations and whether the penalties should be waived because they had reasonable cause for omitting the information. "

On Aug. 5, in Dick DeGuerin and Lewis Dickson v. United States of America, U.S. District Judge Sim Lake of the Southern District of Texas denied both sides' motions for summary judgment and set a trial date of Sept. 13.

Dick and Lewis are being represented by a litigation team from Foreman DeGeurin Nugent & Gerger. a firm headed by Dick's equally esteemed and formidable brother, Mike DeGeurin. The "Foreman" in the firm name stands for Percy Foreman, the legendary Texas criminal defense lawyer, now deceased, whom both brothers worked with years ago.

Our money is on Dick--in the form of a check, of course.

The financial privacy law is inching forward in the California state legislature. The San Francisco Chronicle today praises the bill.

"It would be fitting for California to become the first state in the nation to seize the opportunity offered by Congress to exceed the weak privacy rules in the federal Financial Modernization Act of 1999. "

"This is the state that established privacy as an inalienable right in its constitution. Few aspects of our lives are as personal as our family finances. Assembly members should be encouraged by voters who care about privacy to pass the Speier-Nation bill."

Check out Terrorist Granny gets the Riot Squad treatment!!! on Eschaton, Atrios's blog.

Here's the story behind it.

More on yesterday's FISA court opinion rejecting the Department of Justice's proposed guidelines for electronic and physical searches based upon the Government's erroneous argument that the Patriot Act now allows it to get FISA warrants where the main purpose is to further a criminal investigation rather than to gather foreign intelligence information (and points out their errors in 75+ previous applications):

For analysis, the ACLU is right on target and Jason Rylander's excellent comments are here.

Book Plug: For an an in-depth, section-by section analysis of the Patriot Act, for only $19.00, check out Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001: An Analysis by Stanley Mailman; Jeralyn E. Merritt; Theresa M. B. Van Vliet; Stephen Yale-Loehr (published by Lexis Publishing and available on line through the link above or the Lexis.Com bookstore.)

"It contains expert analysis of the important substantive changes included in the Uniting and Strenthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. The organization of the pamphlet tracks the legislation, broken down into sections discussing the statute's provisions with respect to each of the following topics:

enhanced surveillance procedures
money laundering and financial crimes
protecting the border
investigation of terrorism
providing for the victims of terrorism, public safety officers, and their families
information sharing among federal and state authorities
strengthening the criminal laws against terrorism
improved intelligence

The authors describe the important changes made by the legislation and analyze the potential impact of those changes--both positive and negative."

TalkLeft's publisher and principal writer/voice is a proud co-author of the work.

AUGUST 23, 2002--FOR IMMEDIATE RELEASE

By the National Association of Criminal Defense Lawyers

FISA court's concerns symptomatic of law enforcement's 'ends justify means' approach. Courts should oversee deprivations of liberty, and oversight should be more than rubber stamp

Washington, D.C.--In response to concerns voiced by the court designated to hear cases under the Foreign Intelligence Surveillance Act that federal law enforcement officials misled the court on at least 75 occasions in requesting wiretaps or other electronic surveillance, National Association of Criminal Defense Lawyers President Lawrence Goldman issued the following statement:

"It is no surprise to criminal defense lawyers that warrant applications by law enforcement authorities often contain misleading and even false statements. It is particularly disturbing, and surprising, that even the director of the FBI presented false information to the FISA court.

"If the federal authorities have confessed to 75 instances of misleading this one court of limited jurisdiction, the number of times they have misled other courts must be well into the thousands.

"With this track record, it takes gumption for federal authorities to ask the courts and the American people to take their word for it when they claim that they have good reason to lock someone up and deprive him of counsel or access to the courts.

"The courts should carefully scrutinize the claims of federal authorities when they want to deprive an American, or non-American, of liberty. This latest revelation shows us that the courts cannot accept blindly the assertions of government officials."

Daily Kos, as has become the norm, has an excellent analysis of the eroding support for a war with Iraq.

His prediction (and he has numbers to back it up):

"Expect public support for war to continue to erode as more and more prominent Republicans (and a few Democrats) make strong and persuasive arguments against the invasion."

This post gets a bump and an update:

Is there something in the water being served New Jersey Grand Jurors?

This just in the AP wire, the grand jury, on its own initiative, indicted the parents of a teen who died of a heroin overdose. The proseuctors had sought indictment of the other kids who gave the drugs to the kid who overdosed, and the grand jury indicted the parents as well. The article is sketchy but it seems like the grand jury thought that since the parents knew their son had a drug problem, they could have prevented his overdose.

We wonder how many of the grand jurors are parents of teenagers.

Update: Legal analysts are weighing in: The Grand Jury was out of line.

"Sandra Guerra Thompson, a law professor at the University of Houston Law Center, said prosecutors will have a tough time proving the couple knew DiPasquale's heroin use would contribute to his death.

"Relatives living in the same home may have a legal duty to rescue each other if in trouble, like choking, for example," Thompson said.

"But people who take heroin don't normally die."

In recent years, some states have passed laws that hold parents liable for a child's crimes. But Thompson said courts have consistently declared those laws unconstitutional."

Word reaches us the parents may not have a lawyer yet. Defense lawyers, check back in later--we'll put the call out here for someone to help these folks pro bono if its needed. Thanks to NORML for offering to relay any help offers.

A Rocky Mountain News Editorial today takes the Government to task for its secretive detention policy on U.S. Citizens in American Citizens Shouldn't 'Disappear':

"...if the government is going to persist in holding U.S. citizens indefinitely as grand jury witnesses, the public has a right to hear, or at least read, the constitutional arguments about the statute."

"The newspapers aren't trying to spring Ujaama themselves; he has his own attorney for that job. What we're interested in are the larger questions of public access to judicial proceedings and the detention of a citizen without a public hearing. "

"Holding foreign nationals at Guantanamo who have fought the U.S. abroad is one thing; arresting a U.S. citizen in the U.S. and then indefinitely depriving him of his liberty when he hasn't been charged with a crime is something else. "

"Terrorism is a serious threat but it doesn't justify the government's attempt to deprive U.S. citizens of traditional constitutional rights. Our judicial system can survive even in the terrorist era. "

The News has a special interest in the case of James Ujaama. He was seized from his grandmother's house in Denver.

Here is more on Ujaama's case.