Posted at 7:00 AM ET, 01/30/2008
Goodbye to All That
Alas, my friends, the time has come. After nearly two years of tumult (broken occasionally by brief periods of boredom), Bench Conference will end today with this post.
It has been a fascinating experience, and I am truly grateful for the opportunity. As I mentioned in my very first post, when I was in college I corresponded briefly with Art Buchwald and told my mom that I would one day write for The Post. And I hope to do so again.
In the meantime, I want to thank so many of you -- even you, Constitutionalist, and especially you, Ex-AUSA! -- for taking the time to write such passionate and often elegant posts. I read as many as is humanly possible, honest I did, and what struck me most was how eager so many of you were to engage for so long with one another on points I had raised perhaps or less fully or artfully than you had hoped for. The energy and commitment so many of you showed on so many issues is truly the engine of the Internet and helps explain why it is the new medium for the new millennium.Continue reading this post »
Posted at 1:00 PM ET, 01/22/2008
Jose Padilla Finally Catches a Break
Jose Padilla, the once-upon-a-time-but-not-really "dirty bomb" suspect, was sentenced today in federal court in Miami to 17 years and four months for his role in a terror conspiracy that barely got off the ground. The sentence is shorter by far than the 30-years-to-life sentence recommended under the federal sentencing guidelines.
Why the break for the guy introduced to us in 2002 as the face of terror? Easy: U.S. District Court Judge Marcia G. Cooke, a Bush appointee, was never convinced that the government had a strong case against Padilla and two other convicted in the case. As she said today, "There is no evidence that these defendants personally maimed, kidnapped or killed anyone in the United States or elsewhere."
Posted at 2:52 PM ET, 01/18/2008
Don't Cry for John Yoo
Former Justice Department official John Yoo, author of our nation's most ill-conceived and damaging terror-law policies, wants your sympathy. He's being sued in civil court by former "dirty bomb" suspect Jose Padilla, who alleges that Yoo was behind his designation as an "enemy combatant" and the torture he endured while in military custody.
The suit, Yoo wrote Wednesday in a touchy-feely op-ed in the Philadelphia Inquirer, is an example of how terrorists use law to wage war on Americans. "They use cases such as Padilla's to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress," Yoo laments. "'Lawfare' has become another dimension of warfare."Continue reading this post »
Posted at 8:02 AM ET, 01/16/2008
Safe Stall Sex: The Larry Craig Defense
Taking a position that will delight horny, late-night bar patrons everywhere, the American Civil Liberties Union is arguing that people who have consensual sex in bathroom stalls in public places have a reasonable expectation of privacy and thus a 1st Amendment right to engage in a little sumpin'-sumpin'.
Citing a 38-year-old case as precedent, the ACLU took this position in the Sen. Larry Craig (R-Idaho) toe-tap case. The ACLU filed a brief yesterday on Craig's behalf in Minnesota, the scene of Craig's infamous sex-sting adventure last year. The senator (yes, he is still in office despite promising to resign last year) is fighting to overturn his own guilty plea on disorderly conduct charges and now has card-carrying ACLU lawyers helping to argue his case. What a country!Continue reading this post »
Posted at 7:00 AM ET, 01/15/2008
The Limits of Motherhood -- and the Constitution
Cody Miyler is a fellow with an abundance of gall. After being dismissed as police chief of East Galesburg, Ill., Miyler sued the town of 900, claiming a violation of his constitutional due process rights. Apparently East Galesburg has an ordinance decreeing that the town "president" must sign off on police chief firings, and Miyler claimed that the then-president - who happened to be his mother - hadn't given her consent.
But gall only gets you so far with the law (just ask OJ Simpson). And so it was that the 7th U.S. Circuit Court of Appeals last week decided to end Miyler's curiously-long quest for satisfaction from the town he briefly served.
The court declared in a five-page opinion that there was no "due process" right to the job and that, even if there were, it would not generate a "property interest" sufficient to trigger constitutional protection.Continue reading this post »
Posted at 1:14 PM ET, 01/13/2008
English Professors Bare Arms
You know you've got a humdinger of a Supreme Court case when a covey of grammarians -- "scholars who teach, write and speak about English, linguistics and the principles of grammar" -- feels the need to chime in with a "friend of the court" brief. And, indeed, the Second Amendment fight District of Columbia v. Heller is just such a case. Hear ye, hear ye, the English departments have weighed in! Their verdict: The Second Amendment bestows a "collective" not an individual right to bear arms.Continue reading this post »
Posted at 8:00 AM ET, 01/11/2008
Sleaze and Sleazier: The Clemens Saga
It's a good thing that accused steroids star Roger Clemens' public appearance before a House committee has been delayed for a month. If it had gone off as scheduled next week, it would have reduced the presidential election (never mind the CIA Tapegate fiasco) to a crawl on the bottom of the cable TV screens of America.
I am grateful for the delay -- the Justice Department asked the House Committee of Government Oversight and Reform to push back the Clemens and Co. show so that some of the underlying legal issues could be clarified -- because it is sad to see the angry and often bizarre unraveling of one of my former heroes. Monday's press conference, at which Clemens unveiled to the world the contents of a creepy audiotape of a conversation between him and his accuser, was my final breaking point with a man whose career in Boston started in the fall of 1984, almost precisely when mine did. (Yes, I admit, he went a little further than me).Continue reading this post »
Posted at 7:01 PM ET, 01/ 9/2008
No Way Jose Makes the Right Call
Pretend for a second you are Jose Rodriguez, Jr., the former CIA official who, early on in the Tapegate scandal, has been fingered (rightly or wrongly) as a culprit behind the destruction of interrogation videotapes. You know the Justice Department has initiated a criminal proceeding on the matter. You know you have a date with a Congressional committee hot to make news at your expense. Wouldn't you, too, lawyer up and then exercise your constitutional right to remain silent?
You know you would. I would, too. Which is why the news that Rodriguez is doing precisely what you and I would do should come as no surprise to anyone, including the investigators and legislators who are gunning for him. In fact, I'm surprised Team Rodriguez didn't go public even earlier with this strategy since it "forks" his pursuers into making some fairly substantial and, in many ways, mutually exclusive choices.Continue reading this post »
Posted at 6:00 AM ET, 01/ 9/2008
Bush v. Gore II: Voting Fraud Back at Court
On this morning after the New Hampshire primary, the Supreme Court hears oral arguments in a voting rights case that presents the justices with the most starkly partisan choice they have faced since Dec. 12, 2000.
Posted at 1:03 PM ET, 01/ 7/2008
Uncomfortable Life-or-Death Moments for the Justices
"This never ends," an audibly frustrated Justice Antonin Scalia said this morning during the middle of oral arguments in the lethal injection case before the Supreme Court. "There will always be another case."
The justice's earnest lament is true. There always is another death penalty case at the Supreme Court, and there always will be. But you'll rarely find another oral argument as philosophical than the one just completed in Baze v. Rees. There weren't any "What is the meaning of death?" moments, but the justices and the lawyers came awfully close.Continue reading this post »
Posted at 6:00 AM ET, 01/ 7/2008
Your Lethal Injection Case Crib Notes
The Supreme Court this morning hears oral arguments in Baze v. Rees, which challenges Kentucky's lethal injection procedures -- and, by extension, similar protocols for the death penalty in 35 other states. I'll be at the court and will report back on what promises to be a lively review of the twists and turns that have marked the debate over lethal injection since it became the favored means of capital punishment. But here's a preview of what the court's likely to hear.Continue reading this post »