Archive: January 2007

A Big 24 Hours in the Legal War on Terror

Big day for justice, real or so-called, in two of our nation's federal appeals courts. In Cincinnati, the 6th U.S. Circuit Court of Appeals hears argument this morning in a case involving the White House's controversial domestic surveillance program. And in Richmond, Virginia, the 4th U.S. Circuit Court of Appeals will hear argument tomorrow morning in a case involving the extent of the President's powers to declare as "enemy combatants" non-citizen resident aliens. Neither case will be resolved anytime soon. But the arguments offered in the span of the next 24 hours or so will help shape the contours of the legal war on terrorism for years to come. Let's take first things first. Today in Cincinnati, attorneys for the American Civil Liberties Union will have to convince a relatively moderate appeals court panel that there is still a genuine legal controversy over the National Security Agency's domestic spy program...

By Andrew Cohen | January 31, 2007; 8:45 AM ET | Comments (31)

The Supremes! My Idea for a Reality TV Show

The whole legal community it seems is agog over the two-part PBS series about the Supreme Court that will begin to air tomorrow night. And I am sure it will be fascinating viewing for court junkies and non-junkies alike. But I am disappointed because my pitch to PBS for the series was roundly rejected. My idea was to do a reality show based upon the Justices. And here were some of my storylines 1. Justice Ruth Bader Ginsburg, the only woman on the Court who in recent days has complained about the lack of female companionship, begins a secret IM dialogue with her old friend, Sandra Day O'Connor, who pressures Ginsburg into making trouble for the boys on the Court. The climax comes when Justice Ginsburg and her off-court buddy Justice Antonin Scalia have an on-air fight over which contestant should have won that week's American Idol competition....

By Andrew Cohen | January 30, 2007; 9:38 AM ET | Comments (21)

Over David Souter's Dead Body

No one can say that Sen. Arlen Specter (R-Pa.), the ranking Republican on the Judiciary Committee, has a poor sense of timing. Just days before the start of a two-part landmark public television series on the Supreme Court, he introduced legislation that would attempt to require the Supreme Court to permit television coverage of "all open sessions" of the Court "unless a majority of Justices determined that that due process rights of one or more litigants would be violated." It's a great idea. And perhaps in a generation or two it'll happen. But right now Specter's bill is dead on arrival. Why? Let me count the ways. First, the Justices don't like being pushed around by Congress when it comes to how the Court itself is run-- it's a separation of powers thing. Second, it is highly doubtful that there is a working "majority" on the Court that would vote...

By Andrew Cohen | January 29, 2007; 4:27 PM ET | Comments (2)

Don't Call them Deadbeats, Call them Duped

Good Monday morning. In today's Rocky Mountain News, Julie Poppen offers us a story of a man named Dylan Davis who was, to use the vernacular, cuckolded, while he was serving in the U.S. Navy in the early 1990s. for years, Davis had suspicions that the twins his wife had given birth to were not his. The couple got divorced, Poppen tells us, and Davis was ordered to pay over $1,000 per month in child support. After a while, he took a DNA test which proved conclusively that the children were not his. Guess what? He still had to pay child support (and still, to this day, pays over $600 per month). Under Colorado law, a "father" is required to pay child support even after he proves that he is not really the "father" of the child after all. Poppen's story is in the newspaper today because Colorado legislators will...

By Andrew Cohen | January 29, 2007; 9:15 AM ET | Comments (4)

White House Plays By Its Own Rules Again

We saw it with Yaser Hamdi and then Jose Padilla. We saw it with the military tribunals for Guantanamo Bay. And we are seeing it again with the National Security Agency's domestic surveillance program. Over the past few years, whenever the White House has seen or sensed trouble looming for its most controversial and tenuous positions in the legal war on terrorism, it has suddenly changed course, altered the playing field, or unilaterally declared itself beyond the purview of the prevailing rule of law. No legal defeats for this administration, no explicit concession of limits on its authority, just a series of tactical or strategic retreats that allow it to show to the world a visage of supreme executive branch power-- while at the same time allowing it at some future date to advance the same losing arguments. And all of it is done in secret, under the cloak of...

By Andrew Cohen | January 26, 2007; 10:30 AM ET | Comments (51)

Gonzo Law

When President Bush delivered his sixth State of the Union address Tuesday night missing from the Capitol was U.S. Attorney General Alberto Gonzales. Apparently, it was his turn to stay away from his fellow leaders just in case something catastrophic were to occur inside the chamber. And if that horrible something had come to pass, Alberto Gonzales would have been in charge of the country, at least temporarily, until the lines of succession could begin to flow again. A scary thought, indeed, when you consider that Gonzales has achieved in just a few years what many legal scholars and court watchers had presumed impossible: he has made his predecessor, John Ashcroft, seem studious, grave and competent. Each week, it seems, our nation's top lawyer does or says something so unsettling, so inapt, so obviously unlawyerlike, that it leaves you wondering how he still is able to maintain his job even...

By Andrew Cohen | January 25, 2007; 10:30 AM ET | Comments (12)

Libby, Libby, Libby, on the Label, Label, Label

What did you really expect from opening statements in the perjury and obstruction of justice trial of I. Lewis "Scooter" Libby? Did you really expect Libby's attorneys to throw his boss, Vice President Dick Cheney, under a bus or to continue to protect Karl Rove? Did you really expect special prosecutor Patrick Fitzgerald to pull a punch and go easy on the former White House staffer after such a long, drawn-out, bitter pre-trial battle? Of course not. There were no great surprises Tuesday when the first blows were struck in federal court in Washington, D.C. in front of a hand-picked jury of men and women who are decidedly not Libby's peers. Fitzgerald sought to convince jurors that Libby simply lied, over and over again, when asked under oath about his role in the public disclosure of the identity of Valerie Plame Wilson as a covert CIA agent. Here is the...

By Andrew Cohen | January 23, 2007; 9:30 PM ET | Comments (8)

The Bad Guys Lose Big on Horse Slaughter

Never mind the lacquered platitudes that will swallow up tonight's State of the Union speech. Never mind the flood of hubristic presidential candidates starting to run a political race no one is interested in following. Never mind even the start of the I. Lewis "Scooter" Libby trial, the results of which will, in the end, impact the lives of no one but Libby, his family, and the massive legal entourages that have sprung up around the case. The big legal news over the past week is and was a decision last week by the 5th U.S. Circuit Court of Appeals that could finally spell the end of two of the nation's three brutal slaughterhouses whose owners are responsible each year for the inhumane deaths of about 100,000 American horses each year. The conservative federal appeals court ruled unanimously that a 1949 Texas law prohibits the slaughter of horses for human...

By Andrew Cohen | January 23, 2007; 9:15 AM ET | Comments (65)

One Zany Day in the Life of the War on Terror

There are some days on the terror-law beat that drone on endlessly. You read the same old briefs alleging the same old civil rights violations made by the same old creepy government officials. And then there are days like today, when chaos and consternation abound, and the turf upon which the legal war has been fought suddenly heaves up and is made new again. Where should I start? I suppose I could start with the pathetic performance offered this morning by the nation's top lawyer, U.S. Attorney General Alberto Gonzales, who seems more hapless, overwhelmed, disrespected, and ineffective each time he appears in public. On this occasion, Gonzales played it coy with the Senate Judiciary Committee when its chairman, Sen. Patrick Leahy (D-Vt.) asked for information about the terms of a deal reached between the White House and the secret Foreign Intelligence Surveillance Court-- which was created by Congress, remember,...

By Andrew Cohen | January 18, 2007; 4:15 PM ET | Comments (7)

The Living Legacy of Art Buchwald

The death of Art Buchwald this morning will touch everyone who knew him in different ways. My brush with the fabled columnist was a brief and long-distance one. In college, when I first started my own love affair with journalism and became a columnist, I wrote to him asking for advice. Sure enough, a few weeks later, in my tiny mailbox at Myles Standish Hall in Boston, I found a letter from him, typed out neatly. I had sent him a few of my clips because at the time I was all about imitating his dialogue-centric style. He could have told me to stop copying him; could have told me to find my own style and get lost; could have simply not written me back at all. Instead, Buchwald wrote me a warm and encouraging (and funny) note that boosted the wind at my back for years to come. In...

By Andrew Cohen | January 18, 2007; 10:15 AM ET | Comments (14)

What the Libby Trial is Not

Jury selection begins this morning in the perjury and obstruction trial of former White House aide I. Lewis "Scooter" Libby and while some analysts believe we are about to see "political theater" I think it is far more likely we are about to endure a rather dense, technical trial that focuses more upon the nuances of perjury law than upon the justifications for the war in Iraq. In other words, most of the political wind in this case already has blown-- now, there will be mostly law in the air. That's not to say that the Libby trial won't see it's share of political drama. Just seeing Vice President Dick Cheney in a courtroom with jurors and regular old members of the media and public, raising his right hand and then being subject to cross-examination, is likely to send political pundits into convulsions of glee. But U.S. District Judge Reggie...

By Andrew Cohen | January 16, 2007; 10:30 AM ET | Comments (39)

Lawyer, Schmawyer: Did he Win the Case?

As a lawyer who has spent the past decade trying to pretend that I am not an attorney, I find the story of Brian T. Valery priceless. Here is a man who allegedly is not an attorney but who succeeded for years at pretending that he was one. He surrendered to authorities yesterday and charged with perjury and practicing law without a license. Apparently, the man was hired by a law firm in 1996 as a paralegal. Eight years later, he told his firm that he had passed the bar exam. How and why the firm did not independently confirm this is a mystery. But then Valery began to practice law like a real grown-up attorney. And the best part? No one really noticed for quite some time. In fact, if you ask me, The New York Times, which ran the story today, buried the lede when Alison Leigh Cowan...

By Andrew Cohen | January 11, 2007; 9:00 AM ET | Comments (12)

A Fine Reporter's Fine Confession

Raymond Bonner of The New York Times is one of the best journalists in the country when it comes to covering the Bush Administration's war on terrorism. So when he offers a mea culpa about the reportage on those efforts, people all over the country, especially all you fellow journalists out there, ought to listen. Writing in the most recent edition of the New York Review of Books, Bonner offered a piece called "The CIA's Secret Torture" (the full piece is not available online) in which he reviewed two new books about the government's efforts at "extraordinary rendition." That's the procedure where our military officials "outsource" interrogation methods to governments which are not as squeamish about torture as we are. The books offer in great detail the litany of lies the Administration has offered by way of explanation and defense for its dark efforts....

By Andrew Cohen | January 4, 2007; 9:00 AM ET | Comments (6)

 

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