Archive: August 2006

Ramsey Vox Pop

Sorry I was out of pocket yesterday. I was travelling and decompressing (not decomposing) after the final 48 hours of frenzy on the John Mark Karr story. Before I offer up a few of the better comments I received on my last Ramsey point, I wanted to just offer you some links to the pieces I wrote since Monday in case you haven't already read them and want to. Here is the piece I wrote Monday night and here is the piece I wrote a few weeks ago just as the story was beginning to unfold. For the Denver Post, I wrote this on Tuesday after the press conference by the Boulder County District Attorney and this on Monday night. I also have written a piece about media coverage which should be printed and posted soon. But enough about me. Let's talk about you. "George" wrote in on Tuesday and...

By Andrew Cohen | August 31, 2006; 9:00 AM ET | Comments (3)

The Stupid Things People Said About Karr

It always happens this way. Out of frustration or anger, and for legal or political opportunity, otherwise savvy public people say colossally stupid things when big stories break in the world of the law. It happened after the Kobe Bryant case fell apart shortly before trial. It happened after the Michael Jackson trial ended. And it now has happened in the curious case of John Mark Karr, the once-upon-a-time murder supsect in the JonBenet Ramsey murder mystery. Let's start with Colorado Governor Bill Owens, who even before Monday had exhausted his quota of mindless soundbytes. Owens, who likes voters to think he is tough on crime, blasted Boulder County District Attorney Mary Lacy for wasting time and money getting a DNA test on Karr. "Unfortunately, the hysterics surrounding John Mark Karr served only to distract Boulder officials from doing their job which should be solving the murder of JonBenet Ramsey,"...

By Andrew Cohen | August 29, 2006; 9:41 AM ET | Comments (104)

A Reasonable Take on The Duke Case

The New York Times published a comprehensive news analysis piece about the Duke Lacrosse rape case Friday and, not surprisingly, the two reporters who investigated public documents in the case concluded that the evidence against the three students is neither as strong as prosecutors have suggested nor as weak as defense attorneys were saying before they were muzzled by a judge. "By disclosing pieces of evidence favorable to their clients," report Duff Wilson and Jonathan D. Glater, "the defense has created an image of a case headed for the rocks. But an examination of the entire 1,850 pages of evidence gathered by the prosecution in the four months after the accusation yields a more ambiguous picture. It shows that while there are big weaknesses in Mr. (Michael B.) Nifong's case, there is also a body of evidence to support his decision to take the matter to a jury."...

By Andrew Cohen | August 28, 2006; 2:00 PM ET | Comments (2)

Uh, Folks, There Are No People on Pluto

I am glad that some of you had fun with last Friday's spoof column about a lawsuit by Plutonians (whatever they are) angry about the declassfication of their planet to "dwarf" status. But I am stunned that some of you, apparently, believed the story to be true. Sure, I included the types of silly statements that plaintiffs and defendants make all the time during the start of head-turning cases like this. But, (and forgive me for having to formally point this out) there are no public-interest groups on Pluto (or anything else, for that matter, that could generate a lawsuit). I did, however, spell "flack" wrong (I spelled it flak) which one reader pointed out. Sorry about that. Back soon with another post. This one not a spoof of anything....

By Andrew Cohen | August 28, 2006; 12:15 PM ET | Comments (1)

Pluto Loses Designation, Sues IAU

In a move that surprised many legal observers, one of Pluto's leading public-interest groups yesterday sued the International Astronomical Union after the IAU declassified Pluto as one of the nine "classical" planets that circles the Sun. It is not yet known where venue for the case ultimately will be placed or precisely which judge eventually will hear the case. "The IAU isn't the end-all, be-all for the solar system," said a public relations spokesperson for Pluto, appearing on CNN's Larry King Show. "You can't just un-designate a planet without giving folks on the planet an opportunity for due process, and the right to be heard, and to challenge the facts upon which the decision is based." The complaint alleges that the IAU violated key provisions of the Administrative Procedure Act, federal constitutional law, and certain Plutonian legal principles that are too complicated to set forth here....

By Andrew Cohen | August 25, 2006; 9:30 AM ET | Comments (156)

Raise Your Hand and Repeat After Me

You know that oath that new citizens take? The one that usually involves the waving of American flags and lots of smiles? Well, here is a ruling that reminds us that the affair isn't just a made-for-television, feel-good event. Celestine Okafor, a native of Nigeria, applied for naturalization in 1994. He signed all the proper documents, renounced his allegiance to Nigeria and every other country and king, and was approved for naturalization. However, he did not attend the public swearing in ceremony and therefore never got his certificate of naturalization. Bad move, as it turns out, because that meant he can be deported in the wake of his conviction on conspiracy charges. The moral of the story? Raise that right hand. Show up for the ceremony. Get that confirmation that you are a citizen-- before you commit any felonies....

By Andrew Cohen | August 24, 2006; 12:00 PM ET | Comments (1)

In The "Only Matter of Time" Department....

Sandi Scott-Moore is not married and not gay. She has a male boyfriend, a life-partner, an old man, whatever you want to call him. And so she is wondering whether she isn't being discriminated against by Washington state's new civil rights law that allows and requires same-sex couples to get the same "domestic partner" benefits as married couples. Should her and her main squeeze get the same deal from Washington as an unmarried same-sex couple would? She has filed a claim with Washington's Human Rights Commission, a bureaucratic organization that gets the lucky job of tackling this issue first. Next up? Federal court, I imagine. Washington's highest court last month ruled that marriage in the state can only be a union between a man and a woman. Another big ruling could be on its way....

By Andrew Cohen | August 24, 2006; 9:00 AM ET | Comments (2)

After the Answer, More Questions Are Raised

As if her big NSA surveillance program ruling last week hadn't come under enough substantive fire, U.S. District Judge Anna Diggs Taylor now will have to answer questions about her relationship, if any, with the ACLU, one of the plaintiffs in the case. The conservative watchdog group, Judicial Watch, raised the issue this week after determining, it says, that a group Judge Taylor has been connected with for years as a trustee donated $45,000 to the American Civil LIberties Union of Michigan. If true, Judge Taylor at a minimum should have made known her connection with the group that gave the money to the ACLU. And the ACLU itself should have been aware, and made others in the case aware, of the connection. Even in a low-profile case similiar conflicts-of-interest, or the appearance of conflicts-of-interest, are disclosed. And in a case with enormous legal and political ramifications you would think...

By Andrew Cohen | August 23, 2006; 12:30 PM ET | Comments (2)

Judge: Counter-terror Structure in Disarray

Hearts were all a-flutter yesterday amid some legal circles after Richard A. Posner, an influential (and outspoken) federal appeals court judge and author penned an unusual op-ed in the Wall Street Journal. In addition to offering an implicit critique of last week's big domestic surveillance program ruling by U.S. District Judge Anna Diggs Taylor (more on that a little later today), Judge Posner blasted the "institutional structure of U.S. counterterrorism" and suggested that "certain provisions of the Constitution" need "to be revised to meet contemporary needs." In other words, he doesn't believe the White House has enough legal room to roam through its anti-terrorism obligations here at home. Judge Posner is pitching a new book on the topic-- he is a prolific writer-- but it is still a remarkable thing for a sitting federal appeals court judge to comment publicly about "the strangeness of confiding so momentous an issue of...

By Andrew Cohen | August 23, 2006; 8:00 AM ET | Comments (4)

Two Bits of News from Karr-ville, USA

John Mark Karr looked scared but said nothing during his brief extradition hearing in California that ends up being little more than a stepping stone between the life he led before in Thailand and the life he'll have now behind bars in Boulder, Colorado as JonBenet Ramsey's accused murderer. There were only two tidbits of information worth passing along. First, we heard for the first time the specific charges against Karr-- first-degree murder and felony murder, two counts of kidnapping, and sexual assault. Second, we learned that Karr had those charges explained to him this morning by his attorneys. That's significant to me because it suggests that Karr already has had substantive discussions with his attorneys about the case against him-- even though he is likely to get a whole new layer of lawyers once he comes to Colorado....

By Andrew Cohen | August 22, 2006; 1:30 PM ET | Comments (4)

Paging Tom Wolfe

The past six days in the life of the JonBenet Ramsey murder investigation read more like a Tom Wolfe novel than a real-life exercise in jurisdictional machinations between two countries and two states. A guy confesses to murder but no one believes him. A murder suspect lives the high life, tens of thousands of feet over the Pacific Ocean, eating food that many will never taste on a flight of any kind. The suspect and his escort clink glasses. There is a news photographer on board. There is a defense attorney whose first name is Patience. There is talk of a sex-change operation and a mother who tried to kill the suspect when he was young. Sherman McCoy... meet John Mark Karr. I tried my best this morning to offer you something other than the Ramsey case but things are just plain slow otherwise on the law-news front. Today's big...

By Andrew Cohen | August 22, 2006; 8:50 AM ET | Comments (2)

It's Good to be Back-- Or Not

As you can tell, I am back from a mini-vacation that was made even more mini by the dramatic developments in the JonBenet Ramsey murder investigation. But it's good to be back. Did I miss anything else? I mean, besides the important but colossally under-covered ruling by U.S. District Judge Anna Diggs Taylor striking down the White House's domestic surveillance program? Not surprisingly, the Ramsey story sucked the air out of every other legal story last week. And the vortex of news-nothingness continued through the weekend and into this morning with breathless reporting and an all-time new low in legal reportage-- bulletins about what the suspect, John Mark Karr, ate and drank on his long flight from Thailand to California. What's next, updates on his bathroom schedule? There is absolutely nothing legally significant about the fact that Karr ate grilled prawns and pate on his flight-- but the menu on...

By Andrew Cohen | August 21, 2006; 12:00 PM ET | Comments (6)

What if Karr is a Stool Pigeon, Too?

In the Black Hole of Baseless Speculation that has in the span of just a few days once again become the JonBenet Ramsey murder investigation, I have come down squarely against those who for years were so certain that the Ramseys themselves had killed their daughter (see my last Bench post) and on the side of those who believe that anyone remotely interested in this story would do well to take a few deep breaths, let the process sort itself out, and not rush to any conclusive judgments until we know way more than we know now about John Mark Karr intersected with the Ramsey case. Let me now add a third layer of argument-- just a little fodder for y'all out there on a Monday morning in late August. What if John Mark Karr, instead of being JonBenet Ramsey's actual murderer, is a material witness and second-tier murder suspect...

By Andrew Cohen | August 21, 2006; 7:30 AM ET | Comments (3)

It's Time to Apologize to the Ramseys

Whether John Mark Karr ultimately is convicted or not of the most famous tabloid crime since O.J. Simpson stalked the night, the first thing that ought to happen is that the authorities should hold a press conference and publicly name from A to Z all those quick-to-judge people who so loudly and repeatedly and with creepy glee accused John and Patsy Ramsey of murdering their beautiful little child in 1996. There were so many of these would-be lynchers, they were so presumptuous and self-certain and smug, they went on so relentlessly for years, and now they appear to have been wrong about what happened to JonBenet. And not just wrong in an innocent bystander sort of way, but wrong in the sense that they are perpetrators of a blood libel against a family that had already suffered enough....

By Hal Straus | August 16, 2006; 9:03 PM ET | Comments (99)

See You All Back Here Soon

I love how my post earlier today suggesting that officials ban all carry-ons except for purses and briefcases devolved into a debate about racial profiling, locks on bags, and my travel status (no, sorry, I can't afford to fly first class). I was particularly fascinated with how many of you took the time to e-discuss (in jest, I assume) banning babies from flights, a Dafoe-ian idea that of course had no relationship whatsoever with any of the details of my original post. Sort of like that old childhood game Broken Telegraph, right? What a country. Anyway, the topic of the travails of travel is a perfect segue to tell you all that I'm going on vacation for a few days-- no, I'm not taking a plane- and so won't be posting for a bit. I will try to come back tanned, rested and ready to cover legal stories as they...

By Andrew Cohen | August 11, 2006; 4:26 PM ET | Comments (9)

Why Not Just Ban Carry-Ons?

The legal news of the day is slow in coming-- it's August, after all, and plenty of lawyers and judges are off on vacation practicing their speeches about due process-- so I thought I would throw out a thought about the ramifications of yesterday's big air travel news. In the wake of the foiled terror plot, and knowing now not just what a few innocent items can do when brought together but what impact the discovery has had on the ability to board a plane, why not just ban carry-ons outright? Since when did bringing shampoo on board a plane become a right? Since when did avoiding checked luggage become sacrosanct? If I were the King, I would ban all carry-ons except for purses and small briefcases. The time passengers would save in security lines waiting to board planes is a lot longer than the time they currently save by...

By Andrew Cohen | August 11, 2006; 9:00 AM ET | Comments (285)

Correcting the Record in the Duke Case

Just want to correct and clarify something I wrote last month in a Bench Conference post about the Duke lacrosse case. In the post, I wrote that Durham County Superior Court Judge Kenneth Titus, who was then presiding over the case, had told lawyers several months before to comply with their ethical obligations not to talk publicly about the case in a manner designed to influence potential jurors, etc. He didn't, having only recently been appointed to preside over the case in place of Durham County Superior Court Judge Ronald L. Stephens. The problem was caused by wire reports that indicated that Judge Titus, in July, reminded attorneys of their ethical obligations to gag themselves. He apparently reminded them in a figurative sense, and not a literal one, and it's a distinction I should have caught the first time around. I am sorry for these errors and will work hard...

By Andrew Cohen | August 10, 2006; 4:15 PM ET | Comments (74)

A Solution For Which There is No Problem

The concerted attacks upon the judiciary by political conservatives are multi-faceted. There have been assaults upon the scope of judicial power-- Congress has been threatening to take away from federal judges the jurisdiction to resolve precisely the sorts of "cases and controversies" that the courts were set up to resolve. There have been assaults upon the authority and legitimacy of the courts-- politicians and other leaders have actually threatened judges with retribution for decisions that the former perceived to be "wrong." And there have been assaults upon the structure of the judiciary-- into this latter group comes a fellow named John Andrews, a former pol in Colorado, who now is pushing to impose judicial term limits onto the State. Andrews and his compatriots have successfully placed upon the ballot this November an initiative that would limit to 10 years of service all appellate judges in the state. In addition, it...

By Andrew Cohen | August 10, 2006; 9:00 AM ET | Comments (33)

Poor, Sweet, Innocent Canadians (Part Deux)

Those loyal readers among you will remember fondly (or with exasperation) my troubles in June with U.S. border officials over a little bit of smoked meat (that's pastrami here in the States). Well, here is a story that tops all that and easily. As the Christian Science Monitor reports, the residents of Campobello Island, in Canada, have to cross into the United States (Maine) if they want to get gasoline, or go see a movie, or get to a hospital. Geography, the road system, and our borders with our friendly neighbors have made it so. But with a new border crackdown brought on by terrorism fears, the ability of island residents to make the crossing has been difficult and it is about to get worse. Soon, everyone crossing into the States will have to have a valid passport. This includes, the Monitor reports, school-age children travelling by bus to play...

By Andrew Cohen | August 9, 2006; 4:15 PM ET | Comments (3)

Reading Into Eminent Domain

As regular readers know, I don't typically respond to the many comments I receive about many of my posts. But my post earlier this week about eminent domain evoked several reflexive comments that beg for a moderated response. The gist of these comments was that I was somehow siding with and apologizing for the big, bad government in its nefarious effort to take private property away from innocent homeowners. This gist is wrong. A close and calm review of my original piece reveals that I was simply trying to focus attention about the eminent domain controversy away from judges and some hazy definition of "the government" and toward the people who truly are responsible for the eminent domain laws in every state-- local legislators and the developers who lobby to protect and enhance their own interests. Nothing in that initial post suggests one way or the other whether I agree...

By Andrew Cohen | August 9, 2006; 12:00 PM ET | Email a Comment

An Unfortunate Battle Over Books

Librarians aren't in the habit of turning away readers or otherwise discouraging people from reading books. Yet in Worcester, Mass. library officials have for the past three years implemented a policy that precludes homeless people from checking out more than two books at a time. To a fellow named Robert Bombard, an avid reader who lived in a shelter for a while, and who was thus denied the right to check out books, that wasn't good enough. He and several other homeless people complained and now there is a lawsuit pending against the library brought by the ACLU and a local legal assistance group. Library officials say the policy was put into place because homeless people typically were unable to provide an address where they (and the books they checked out) could be located if a book became overdue. Yet people with a permanent address, the AP reports, are able...

By Andrew Cohen | August 9, 2006; 9:00 AM ET | Email a Comment

Baseball Strikes Out

To no one's suprise (especially regular Bench Conference readers), a federal judge in St. Louis this afternoon declared that Major League Baseball has no absolute proprietary right to the statistics its players generate. That means that fantasy league operators can continue to legally use those statistics, which the rest of us can glean from our local newspapers anyway, to form for-profit fantasy leagues. Baseball never should have picked the fight to begin with. You can't "own" statistics that are generated in front of 40,000 live fans and millions more around the country any more than you can "own" a temperature reading or the time the sun rises. MLB's legal arguments were thus as lame as its image-makers were in allowing this dispute to make it this. Baseball fans have suffered enough recently thanks to the steroids scandal. And now they get to read that Baseball wants exlusive rights to the...

By Andrew Cohen | August 8, 2006; 6:05 PM ET | Email a Comment

Baseball Likely to Strike Out Over Stats

Proving that greed has no end, Major League Baseball has sued a fantasy league operator over his company's use of baseball statistics. The lawsuit alleges that fantasy operators and players should not be able to profit off the use of players' names and statistics without paying to MLB some sort of a licensing fee. No one really disputes that Baseballs owns the "right to publicity" of its players and teams. But the lawsuit has enormous legal ramifications. If the courts find that MLB "owns" the statistics of its players than all sorts of "facts" could eventually become the property of the folks who generate them. I'm betting that the courts are not particularly receptive to baseball's argument for this very reason. "Facts"-- like baseball statistics, or the weather, or the results of an election, seem to me to belong to the world, to the nation, to the people, and to...

By Andrew Cohen | August 8, 2006; 1:30 PM ET | Comments (2)

The Shot in the Arm

Great piece this morning in the Los Angeles Times about a challenge to lethal injections taking place today in Oklahoma. Unlike many of the other recent cases surrounding the use of deadly chemicals, which have in the main focused upon the timing of the challenge and other procedural matters, this case focuses entirely upon the science of the drugs and their interaction with the condemned prisoner. Two doctors have stepped forward to say that Oklahoma mixes and then applies the deadly cocktail incorrectly. The death penalty itself is not at stake in the case, which is why some observers believe we may see some movement in the case. The capital defendant involved is Eric Allen Patton who is scheduled to be executed in Oklahoma on August 29. So far, reports the Times, the State has not responded to those doctors who say that Oklahoma should change the way it administers...

By Andrew Cohen | August 8, 2006; 9:00 AM ET | Comments (1)

Convict's Claim Will Go Up in Smoke

It makes for one of those stories that the wire services and cable shows love to grab hold of. A capital convict and his creative appellate lawyers make an astonishing argument that is perfect for the water cooler. In this instance, a fellow named Phillip Elmore was sentenced to death by an Ohio jury in 2003 after the panel deliberated for six hours in his aggravated murder case. Elmore even told the jury before it began its sentencing phase deliberations that he deserved the "worst punishment," which the panel quickly gave him. Now, Elmore's attorneys contend among other things that he should be given a new trial because the judge who presided over the case precluded jurors from smoking during deliberations. The idea is that jurors were therefore "coerced" into a quick guilty verdict so that they could resume puffing away. The Ohio Supreme Court will review the case tomorrow...

By Andrew Cohen | August 7, 2006; 4:30 PM ET | Comments (2)

Hysteria on and in Parade

Parade magazine, the one you get and read amid all the ads in your Sunday paper, has never been known for its hard-hitting journalism. After Sunday's atrocious piece entitled: "Will the Government Take Your Home?" it is easy to see why. The piece, which isn't labeled as an opinion or commentary column but in fact is, reads shrill enough to make any uninformed reader and homeowner jump up from the couch and run to bar the door to prevent evil and greedy G-men from rushing in. In some ways this hysteria isn't surprising given the reaction last year's big Supreme Court eminent domain ruling received from mainline journalists. The convention wisdom had it then (and has it now, unfortunately) that a group of judges had suddenly defiled the centuries-old notion that a man's home is his castle. The truth is much different. The Supreme Court in Kelo simply recognized that...

By Andrew Cohen | August 7, 2006; 12:00 PM ET | Comments (15)

To Get Respect, Congress Must Earn Respect

Yesterday's Boston Globe offered a classic and well-told story of how things work in Washington these days. I'll just let Susan Milligan's great lead sentence say it all: "Nearly all members of the House of Representatives opted out of a chance to read this year's classified intelligence bill, and then voted on secret provisions they knew almost nothing about. "The bill, which passed 327 to 96 in April, authorized the Bush Administration's plans for fighting the war on terrorism. Many members say they faced an untenable choice: Either consent to a review process so secretive that they could never mention anything about it in House debates, under the threat of prosecution, or vote on classified provisions they knew nothing about. Most chose to know nothing." Which choice would you make? Would you rather know what you were voting upon or be able to talk about it on the floor of...

By Andrew Cohen | August 7, 2006; 9:00 AM ET | Comments (1)

Looking for a New Spectator Sport? Try This One

It is now less than 24 hours until the 81st running of the Hambletonian, harness racing's most prestigious race, and I am so excited I can barely type. What's that you say? This post has nothing to do with the law? You are right. It's Friday afternoon, in August, and there aren't a whole lot of judges, lawyers or witnesses working out there. So why not indulge? If you haven't ever seen a harness race, tune in to CBS tomorrow afternoon to check out the Hambletonian. It's fast and exciting and full of interesting characters and noble horses. In fact, if you haven't already, you should check out harness racing online or at a track nearest to you. It's a great sport, a great hobby, and a great way to spend a few hours, whether you like to bet or not. The big favorite for this year's race is named...

By Andrew Cohen | August 4, 2006; 4:00 PM ET | Comments (1)

Just When You Thought It Was Safe To Go Back In

On the same day that the Los Angeles Times and Bloomberg tallied a public opinion poll that indicates that "more Americans than ever disapprove" of the President's handling of the environment, an environmental group sued the Environmental Protection Agency in California accusing the federal agency of dragging its heels to comply with a Congressional mandate to better protect our beaches. And the new lawsuit will proceed in the shadow of a huge environmental case now pending before the U.S. Supreme Court that will help determine how seriously the government must fight to curb greenhouse gases that cause global warming. In California, the Natural Resources Defense Council alleges that the EPA failed to meet a Congressionally-imposed 2005 deadline to update its "beach-water" health standards. According to the Associated Press, the "lawsuit was filed on the same day the group issued a report that found beach closings due to hazardous bacterial contamination...

By Andrew Cohen | August 4, 2006; 1:15 PM ET | Comments (1)

The Hard Way on NSA

Bad day yesterday for Sen. Arlen Specter (R.-Pa.) but he has no one to blame but himself-- and the White House. Senate Judiciary Committee Democrats blocked a vote on Specter's domestic surveillance legislation, which is designed to serve as a compromise (on excellent terms for the Administration) over the legality of the National Security Agency's controversial spy program. As Sen. Dianne Feinstein (D-Ca.) put it, sometimes a bad bill is worse than no bill at all. If there is no legislation over the NSA program, the federal courts ultimately will decide its constitutionality-- and things don't look so good for the Administration on that score. So far, judges have been fairly unreceptive to the idea that the president has the constitutional power to order warrantless searches beyond the scope Congress authorized when it passed the Foreign Intelligence Surveillance Act. If Sen. Specter's legislation passes, however, it is unclear whether the...

By Andrew Cohen | August 4, 2006; 9:45 AM ET | Email a Comment

Appeals Court Shoots Down Minnesota

The government may or may not be able to pry your gun from your cold, dead hands. But local authorities clearly may block you from travelling into North Dakota to fire that gun at assorted little animals. So said the 8th U.S. Circuit Court of Appeals today in a case that pitted Minnesota versus North Dakota over the hunting rights of nonresidents. Over the objections of small business owners who loved the income out-of-state hunters brought with them to North Dakota, the state legislature there enacted a series of measures designed to protect resident hunters by restricting the hunting privileges of non-residents. Meanwhile, Congress passed a little-publicized new law that took the feds out of the business of refereeing these sorts of hunting-related disputes between the states. Taken together, those two legislative decisions were too much of a hurdle for Minnesota to overcome....

By Andrew Cohen | August 3, 2006; 2:45 PM ET | Email a Comment

Padilla Case "Very Light on Facts": Judge

It should come as no surprise to anyone who has followed the government's war on terror that the case against Jose Padilla, once the "dirty bomb" suspect and now just a common criminal suspect, has again been declared "very light on facts" by the federal trial judge presiding over the matter. It's a pattern we've seen before. The feds overhype their anti-terror convictions, turn low-level thugs into terror masterminds when they clearly aren't, and then don't have the evidence to back up their claims. We saw this happen to Yaser Esam Hamdi, who first was declared "an enemy combatant" because he was so dangerous and vital to our anti-terror efforts-- until he was simply let go and allowed to return to Saudi Arabia after a Supreme Court ruling pressed the White House to fish or cut bait on his case. And we saw it happen to Zacarias Moussaoui, who first...

By Andrew Cohen | August 3, 2006; 12:30 PM ET | Comments (3)

Duty, Honor, Country

It was the most encouraging news yet to come out of the political and legal debate over the use of military commissions to try terror detainees. There they were in crisp splendor. Uniformed military officers, lawyers, sitting before the Senate Judiciary Committee Wednesday and having the courage and honor to tell the world (and their boss, the Commander-in-Chief) that they do not agree with the political operatives in the White House who keep trying to push forward an unconstitutional, unfair, and short-sighted set of rules governing how these special suspects should get their day in court. "The basis for the lawyers' concerns about administration policy," wrote The Post's R. Jeffrey Smith, "which they first articulated in private memos in 2002 and 2003 for top Defense Department political appointees, is that weak respect for the rights of U.S.-held prisoners eventually could undermine U.S. demands for fair treatment of captured U.S. service...

By Andrew Cohen | August 3, 2006; 9:00 AM ET | Email a Comment

Congress Crosses Another Line

The folks who like to tell you that they want to keep the federal government off the backs of state and local authorities really mean what they say-- unless and until they don't feel like it anymore, in which case they scramble madly to interject the federal noses into matters that are none of the national government's business. We saw it last year during the shameful Terri Schiavo saga and we are seeing it again with the curious case of a controversy surrounding a cross atop Mt. Soledad near San Diego. Yesterday afternoon, the Senate voted unanimously to order and authorize the transfer to the federal government of the land upon which the large cross sits. Why? Not because the feds have extra money to throw around. Not because the land will help the feds ensure our national security. Not because the federal and state courts required the government to...

By Andrew Cohen | August 2, 2006; 3:30 PM ET | Comments (1)

William the Conquerer

U.S. District Judge William G. Young has done it again. The jurist who declared the federal sentencing guidelines unconstitutional just a few months before the U.S. Supreme Court did in 2004 has again declared in a stunning 125-page ruling that the existing sentencing scheme simply doesn't work as a matter of law, conscience or practicality. His bottom-line conclusion? "Juries can and should perform" sentencing functions "as a matter both of practice and of constitutional procedure." But it is the way Judge Young gets there, with an order that reads more like a treatise, that is extraordinary. This decision ought to be required reading for every federal judge, every member of the Sentencing Commission, and every politician who has or wants to tinker with the existing sentencing rules. I am going to write a Post column on Judge Young's order and will let you know when it is done. If you...

By Andrew Cohen | August 2, 2006; 12:30 PM ET | Email a Comment

The Latest in the Battle for the Future of the Courts

The intensified debate over the independence and authority of the judiciary is going to be with us through this election cycle and beyond so if you haven't mulled it over by now you might as well start. This morning, for example, we have for your perusal a silly op-ed in USA Today that trots out all the old saws about how activist judges ought to be held accountable to the people while their authority is undercut by Congress. To their credit, the paper's editorial board, on the same page, chimes in with a much more responsible take on the issue. "Unfortunately," the house editorial notes, "judges across the USA are facing a broad assault on their independence that threatens to undermine the nation's tradition of judicial autonomy and every citizen's ability to get a fair shake." Yesterday, on slate.com., Bert Brandenburg of the Justice At Stake group, posted an online...

By Andrew Cohen | August 2, 2006; 9:00 AM ET | Comments (1)

The Times Loses Again to the Feds over Shield Rules

Another court. Another decision. Another defeat for journalists trying to shield information or sources from the government. This time, once again, the big loser is The New York Times, which came out today on the wrong end of a big ruling from the 2nd U.S. Circuit Court of Appeals. The federal appellate court overturned a trial court ruling that had blocked the government from going after the telephone records of two reporters who had contacted on the eve of a federal raid two fund-raising organizations suspected of terrorism ties. And, yes, one of those reporters is the famously harried Judith Miller, now only a former Times reporter. The court's majority concluded that the government had established (to its own satisfaction if not to the satisfaction of all three of the judges who heard and decided the case) that it exhausted other alternatives before trying to get the phone records of...

By Andrew Cohen | August 1, 2006; 1:16 PM ET | Comments (2)

Check Out the Moussaoui Evidence On-Line

Do yourself a favor even though it won't be easy. As the Washington Post and other outlets are reporting this morning, U.S. District Judge Leonie M. Brinkema, who presided over the 9/11 conspiracy trial of Zacarias Moussaoui, has authorizing the online posting of virtually all of the evidence from that trial. Go to that site. Spend some time reading the and listening and looking at the photographs. I promise you that you will get a much deeper perspective into what this past spring's big terror trial was and was not about. Want to know what the jurors saw as prosecutors tried lamely to link Moussaoui to the worst crime in American history? Check out the site. Want to hear 9/11 recordings from inside the Twin Towers? Check out the site. Want to follow the document trail that reveals what Moussaoui did (asked a flight trainer if the doors to the...

By Andrew Cohen | August 1, 2006; 9:00 AM ET | Comments (1)

 

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