The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history. - Justice Robert Jackson, dissenting in Korematsu v. US.

Thomas Friedman condones torture today:

President Obama got it about as right as one could when he decided to ban the use of torture, to release the Bush torture memos for public scrutiny and to not prosecute the lawyers and interrogators who implemented the policy. But there is nothing for us to be happy about in any of this. . . . [Y]es, people among us who went over the line may go unpunished, because we still have enemies who respect no lines at all. In such an ugly war, you do your best. That’s what President Obama did.

Justice Brandeis' response:

Both Jeralyn and I wrote about the Ninth Circuit decision (PDF) in Mohamed v. Jeppesen Dataplan (I think it is is unanimous that it is a brilliantly written opinion by Judge Hawkins, no matter what you think of the result, so I again urge you to read it). I want to add the following excerpt from Glenn Greenwald's interview with the victorious ACLU attorney Ben Wizner:

Meet the new "Operation Pipeline." The brainchild of the LAPD, it's being used by police departments nationwide to create a new national database of people engaging in suspicious behavior.

Here and in nearly a dozen other cities, including Boston, Chicago and Miami, officers are filling out terror tip sheets if they run across activities in their routines that seem out of place, like someone buying police or firefighter uniforms, taking pictures of a power plant or espousing extremist views.

Ultimately, state and federal officials intend to have a nationwide reporting system in place by 2014, using a standardized system of codes for suspicious behaviors. It is the most ambitious effort since the Sept. 11 attacks to put in place a network of databases to comb for clues that might foretell acts of terrorism.

[More...]

Judge Jay Bybee broke his silence on the torture memos Tuesday, in responses to questions from the New York Times.

The reason for breaking his silence: He disagreed with an article in the Washington Post alleging he had regrets over the signing. Bybee says:

“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

He should have just kept silent. As a Judge, he should know by now that the 5th Amendment protection against self-incrimination, even if just in the court of public opinion, is there for a reason: Use it or lose it.

It took the death of a 23 year old woman to convince the Florida legislature to consider a weak response to law enforcement's addiction to (and often loose supervision of) confidential informants, particularly in drug investigations. The Philadelphia Inquirer reminds us of a different deadly outcome in Atlanta that started with an informant's lie.

TalkLeft has often discussed the damage that informants do to individuals and families, to law enforcement agencies, to privacy rights, and to the criminal justice system and the society that depends upon it to operate fairly. The Inquirer reports allegations about Narcotics Officer Jeffrey Cujdik's relationship with an informant in the context of a larger issue of crime policy: law enforcement's nearly unregulated reliance upon police informants.

As to Cujdik: [more ...]

As Big Tent Democrat wrote earlier, the 9th Circuit Court of Appeals today reversed the dismissal of the ACLU lawsuit against Boeing subsidiary Jeppesen DataPlan Inc. for its role in the Bush administration's unlawful extraordinary rendition. The opinion is here (pdf.)

The Bush and Obama Administration's "state secrets" claim was expressly rejected. The opinion says the government must invoke the state secrets privilege with respect to specific evidence, not by moving to dismiss the entire suit.

The ACLU brought the suit on behalf of five men, Al-Rawi, Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza and Mohamed Farag Ahmad Bashmilah, who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated and tortured. The case is Mohamed et al. v. Jeppesen. The ACLU's brief is here.

BTD is watching Game 5 of the Bulls-Celtics series.

At my house, it's American Idol and DWTS. Songs tonight on AI will be from the rat-pack era.

Here's an open thread to discuss whatever you are watching...or any other topic if you're not watching anything.

The Senate Judiciary Committee will hold a hearing Wednesday on the disparity of the crack/powder cocaine sentencing laws. You will be able to watch it live, online. Sentencing Law and Policy has more here.

The witnesses include Miami Police Chief John Timoney, who will be arguing the stiffer penalties for crack are unjust.

In the "personal story" segment, Cedric Parker will be testifying for FAMM about his sister and the impact of unjust federal crack cocaine sentences on their family.
[More...]

ACLU Staff Attorney Kristy Bennett earned a well-deserved victory when a judge in Jackson, Mississippi acquitted ACLU Public Education Coordinator Brent Cox on charges of disorderly conduct and interfering with a police officer. The supposed interference consisted of watching a police officer question an individual in front of a grocery store.

While observing, Cox was told to move further away from the interaction and obeyed that command while continuing to observe. After the questioning of the individual ended, Cox asked for the name and badge number of the officer and was arrested.

The passive observation of public employees doing the public's business isn't a crime. Neither is asking a public employee to identify himself. After all, how are we to identify and protect ourselves from official misconduct if we aren't allowed to observe it? Unfortunately, police officers don't always see it that way. [more ...]

The last vacancy in President Obama's cabinet has been filled. By a 65-31 vote, the Senate confirmed the nomination of Kathleen Sebelius as Secretary of Health and Human Services.

Republicans had delayed a vote because of concerns about Ms. Sebelius’s record on abortion as governor of Kansas for the last six years. In addition, some Republicans complained that she and the administration intended to ration health care using the results of research comparing the effectiveness of different drugs and other treatments.

The swine flu scare, according to Mark Warner, prompted the Senate to vote.

Today's 5-4 Supreme Court decision addressing the FCC's 2004 "Golden Globe Order" -- which "declared for the first time that an expletive (nonliteral) use of the F-Word or the S-Word could be actionably indecent, even when the word is used only once" -- will be of primary interest to practitioners and students of administrative law. It does not address the more interesting question: whether the FCC's tough stance against the use of naughty language is constitutional. (For the record, the F-word in question is not fudge and the S-word is not sugar. Use your imagination.)

The FCC's prudish sense of "indecency" is out-of-step with the reality of modern American life. This isn't surprising since the FCC's new-found puritanism was dictated by the religious right, which is responsible for "the lion's share" of indecency complaints. According to the FCC's revised sense of indecency, not only are the fleeting mentions of common expletives on live broadcasts indecent, so are brief views of female (and presumably male) buttocks, Janet Jackson's n*pple, and even "pixilated body parts."

[more ...]

This is terrific news:

Sen. Richard Lugar, R-Ind., said Tuesday he will support the nomination of an Indiana University law professor to head the Obama administration’s internal law office. Lugar, R-Ind., said Tuesday he will support the nomination of an Indiana University law professor to head the Obama administration’s internal law office. He is the first Republican to publicly declare his backing for Dawn Johnsen, whose selection to head the Office of Legal Counsel has grown into a fight about abortion rights and counterterrorism practices.

. . . Lugar has said that, barring something extraordinary, a president should be able to choose top aides even if they support policies the opposition party opposes. He has also said Congress should not require as many posts be reviewed and voted on; about 500 positions require Senate confirmation.

While Specter said he was not in favor of Johnsen, he has never said he would vote against cloture. With Lugar's open support of Johnsen, a GOP filibuster seems virtually impossible now.

h/t to Josh Glasstetter of PFAW. Speaking for me only