Tuesday, June 29, 2004

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New York Times on the Hamdi, Guantanamo cases

The Hamdi opinion.

Five of the justices rejected the argument put forth by Padilla's lawyers during the oral argument, that Congress did not authorize the detention of enemy combatants. These Justices said that Congress' authorization for the war was broad enough to authorize the detentions. Even so, the Court has confirmed that there must be some due process, and that an executive "I told you so" is not enough, to continue to detain someone as an enemy combatant, whether on or off U.S. soil. The next question is, what process is due? O'Connor, writing for the plurality, suggests that hearings before military tribunals may be enough. There, rules against hearsay are bent, or non-existent. The standard or proof would be less than beyond a reasonable doubt, but more than the "some evidence" standard advocated by the government and used in administrative proceedings. At least, the accused gets access to a lawyer.

Many questions remain. How long can someone be detained if they are an enemy combatant? Until terrorism is vanquished from the face of the earth, or just until the military activities in a certain location are completed? What remains to prevent our government from simply leaving people off the roles, to hide them from the Red Cross, and scare them into thinking that no one knows whether they are alive or dead, or tortured, so that they will confess to anything?
Jennifer | 2:29 PM
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Monday, June 28, 2004

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(Good) news on the Supreme Court front. More after I read the opinion.
Jennifer | 12:26 PM
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Friday, June 25, 2004

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Today is my birthday. Here I am, yesterday, having a few drinks with friends.



Jennifer | 9:47 AM
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Wednesday, June 23, 2004

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Brad's article about SCO and open source is on Wired Magazine's website here.
Jennifer | 10:22 AM
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Monday, June 21, 2004

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Contrary to other well-meaning reports, the Hiibel case does not mean that you are required to show ID to police for no reason at all. The case says that a state can pass a statute which requires suspects stopped based on reasonable suspicion of involvement in a crime to identify themselves (verbally). The case stops short of requiring people to carry ID.

That having been said, its not a good ruling for privacy or for the right against self-incrimination.

If everyone has the right to refuse to answer, refusal to answer doesn't necessarily mean any thing suspicious, though police may be suspicious anyway. Nonetheless, there's nothing that they can do about that suspicion, unless it, along with other factors gives probably cause to arrest.

However, if only guilty people have the right to refuse to answer, refusal to answer means (a) the suspect is innocent and either doesn't know the law, or is intentionally violating the law (b) the suspect is guilty of something, thus justified in refusing under the 5th Amendment. Everyone who fails to answer is guilty of something, either of violating the stop-and-identify statute, or of some underlying offense, and can be arrested. The police may not know at the time that the refusal is related to an underlying offense, but they can still arrest for probable cause that the stop-and-identify statute was violated. So now, the suspect can definitely be arrested.

Follow this further. People arrested and charged with violating the stop-and-identify statute are either guilty of that offense, or must defend themselves on the Fifth Amendment ground that the disclosure would have incriminated them about something else, which, of course, they can't be compelled to admit. Catch-22.

Jennifer | 3:48 PM
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Some bad news in the Supreme Court's drivers' license case. Read Froomkin's analysis here.
Jennifer | 10:53 AM
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Thursday, June 17, 2004

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Sec. of Defense Donald Rumsfeld and CIA Director George Tenant ordered a detainee they believed had important information for us in our War on Terrorism to be taken off the list of detainees so that the International Red Cross would not be able to check on his status or condition, and the U.S. would be able to use extreme techniques to interrogate him. Then, because the man wasn't on any list of detainees, we totally forgot about him, and only cursorily interviewed him once. Nothing I can imagine saying here could be more impressive than the bald, absurd truth.
Jennifer | 1:57 PM
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Friday, June 11, 2004

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Sami Omar Hussayen was acquitted yesterday of charges that he used his computer expertise to foster terrorism. Hussayen was acquitted on all three terrorism counts, as well as one count of making a false statement and two counts of visa fraud. Jurors apparently took the judge's instructions about the First Amendment to heart. "Juror John Steger, 68, a retired forest service engineer, said in a telephone interview that the jury was guided by instructions on the First Amendment from U.S. District Judge Edward J. Lodge. The jury, he said, concluded that 'you can print material that advocates illegal action [and] if by printing it doesn't cause people to take imminent action, you are protected.'" But this verdict should not be read only as a weakness in the evidence in this particular case, but as a failure of the USAPA law under which the case was brought. The law itself tries to take traditionally innocent behavior and make it criminal if it relates to alleged terrorism. As a Heritage Foundation lawyer opines in the article, fighting with or sending money or guns to terrorist groups are fairly clear and easy examples of illegal support. "This is new and different," he said. "Computer support or other unusual forms of support that are not traditionally conceived of as criminal activity -- it's not like he provided guns." Web sites = guns or web sites = speech?
Jennifer | 2:40 PM
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Thursday, June 10, 2004

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Take a look at Professor Froomkin's interesting analysis of the Department of Defense memo arguing Bush could torture whomever he likes in the name of fighting terrorism.
Jennifer | 4:49 PM
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Wednesday, June 09, 2004

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The information about Jose Padilla's "dirty bomb" that the Justice Department released last week to sully this man in the public's mind and essentially try him in the press rather than in a court of law turns out to be scientifically questionable. This is why due process (notice, opportunity to be heard, present and cross examine witnesses, neutral factfinder, public scrutiny and right to appeal) is absolutely ESSENTIAL for anyone who values truth or freedom.

Scientists Say Dirty Bomb Would Be a Dud By CHARLES J. HANLEY

NEW YORK - The "dirty bomb" allegedly planned by terror suspect Jose Padilla would have been a dud, not the radiological threat portrayed last week by federal authorities, scientists say.

Jennifer | 4:55 PM
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Quotes to admire, from Chairman Mao and Jacques LaLanne --

According to a biography my friend is reading, the Chairman never brushed his teeth (he'd get up in the morning and rinse his mouth with tea instead, as the peasants do). At one point, his dentist had to pull one of his rotted teeth and described the pus oozing out of his gums around the infected tooth...he then told the Chairman that he really needed to start brushing his teeth. The Chairman responded:

Does a tiger brush his teeth? How do you think the tiger's teeth get so sharp?

And here's Jacques Lalanne in a 1995 Outside Magazine interview on warming up before exercise:

Warming up is the biggest bunch of horseshit I've ever heard in my life. Fifteen minutes to warm up! Does a lion warm up when he's hungry? 'Uh-oh, here comes an antelope. Better warm up.' No! He just goes out and eats the sucker. You gotta get the blood circulating, but shit, does the lion cool down? No, he eats the sucker and goes to sleep. And that," he concluded, folding his arms into a variation of the pose, "is the truth."

Jennifer | 4:12 PM
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Saturday, June 05, 2004

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This story about how the U.S. wrongly accused a Muslim lawyer in Portland, who had never been to Spain, of being involved in the Madrid train bombings, should chill your blood. The FBI took a photoscan of a fingerprint found on a bag that contained detonators, ran it through their database, and decided that it matched the prints of a lawyer living in Oregon. The Spanish forensic people disagreed, but the FBI was eager to make the case. Here's what they put in the affidavit for his arrest:

First, they lied and said that Spain "felt satisfied" with the F.B.I.'s conclusions.

"They included that Mr. Mayfield had represented a Portland terrorism defendant in a custody case; that records showed a "telephonic contact" on Sept. 11, 2002, between his home and a phone number assigned to Pete Seda, the director of a local Islamic charity, who is on a federal terrorism watch list; that his law firm was advertised in a "Muslim yellow page directory," which was produced by a man who had business dealings with Osama bin Laden's former personal secretary; and that he was seen driving from his home to the Bilal mosque, his regular place of worship.

The document also said while no travel records were found for Mr. Mayfield, 'It is believed that Mayfield may have traveled under a false or fictitious name.'"
Jennifer | 6:57 PM
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Friday, June 04, 2004

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A Shout Reader heeded my call to write to Senators Boxer and Feinstein in support of San Francisco D.A. Kamala Harris' decision not to seek the death penalty against the young man accused of killing of Officer Spinoza. This reader's letter to Feinstein also criticized the Senator's support for last year's Medicare Rx bill and stated that the writer and other longstanding Democrats were voting outside the party because of the Senator's record of voting for corporations over individuals. The Senators' responses are duplicated below.

From Senator Boxer

Thank you for contacting me regarding your opposition to the death penalty. I appreciate hearing from you and I have deep respect for your views.

Since the infamous Night Stalker murders in 1985, I have believed that for the most heinous crimes, the death penalty should be reserved as an option.

I recognize, however, that in imposing such a sentence, where the consequences are so final and irreversible, we must take every precaution to make sure that the administration of justice is reasoned and fair. That is why I have cosponsored legislation that would reduce the risk that an innocent person might be executed by providing post-conviction testing of DNA evidence.

Furthermore, we have an obligation to make sure that our system of capital punishment, as a whole, is one that is consistent with the Constitutional requirements of equality and due process.

Again, thank you for contacting me regarding your deeply-held and thoughtful position on the death penalty. I value the views of my constituents and appreciate your opinion and I deeply regret that I have disappointed you.

Sincerely,
Barbara Boxer
United States Senator

From Senator Feinstein


Thank you for your letter in which you express your concerns about capital punishment. I appreciate hearing from you.

The death penalty is an issue that I struggled with for many years. My personal experiences over the past twenty years have convinced me, however, that the death penalty does serve as a deterrent to crime if it is carried out without inordinate and prolonged delay. After many years of seeing the carnage caused by violent crime, lives snuffed out in their infancy and the broken families left to pick up the pieces, it has become clear to me that those who commit heinous crimes in the taking of human lives should, in many instances, forfeit their own.

I do value your opinion and recognize that we do not agree on these matters. I am also hopeful that, in the future, we will find many areas where we do agree. If I can be of further assistance, please do not hesitate to contact my Washington, D.C. office at (202) 224-3841.

Sincerely yours,
Dianne Feinstein
United States Senator

The Shout Reader wonders what personal experience Senator Feinstein has had that has convinced her that quick executions deter crime. "I'd like to know what experience she's referring to before we start gassing people with shortened due process," she writes. I'd like to know as well.

Jennifer | 12:00 PM
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Thursday, June 03, 2004

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Fellow San Francisco Bay Area dwellers, Democrats, Friends:

Please join me in supporting Senator John Kerry's campaign for President in 2004. Voting matters, but money matters, too, and Kerry needs both our votes and our money to defeat the current regime. We will be holding a fundraiser party at the San Francisco Writer's Grotto on June 19th. Download Details. I hope you'll attend, and give at least the minimum, if not more, to support John Kerry and to get our country back on course after this sudden, bumpy, dangerous veer to the right. We also hope this party will help connect younger, urban, creative people with more seasoned Democratic activists, and reinvigorates the Party. Space at the party is limited, so you should register and contribute now.
Jennifer | 11:41 AM
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