by TChris

The conflict between reporters who want to protect their sources and prosecutors searching for leakers is in the news again. So is Judith Miller, and again the reporters are losing in court.

Someone told Miller and another reporter, Philip Shenon, that the government was poised to seize the assets of two Islamic charities. The charities were allegedly tipped to the government's plan when the reporters contacted them to get their reactions to the upcoming raid. Prosecutors want to know who tipped the reporters.

In a 2-1 decision, the Court of Appeals for the Second Circuit held that the government's interest in learning the identity of the leaker outweighs the interest of a free press in protecting its sources.

by TChris

While ducking the question of whether Karl Bullock's federal sentence of 100 years for distributing heroin is reasonable, the Seventh Circuit, vacating the sentence and remanding for a new sentencing hearing before a different judge, had this to say (pdf) about the sentence:

One hundred years is a long time--one year longer, in fact, than the standard lyrical shorthand for an unimaginably long sentence.¹

[1]See, e.g., Bruce Springsteen, "Johnny 99" ("Well the evidence is clear, gonna let the sentence, son, fit the crime / Prison for 98 and a year and we'll call it even, Johnny 99."); Bob Dylan, "Percy's Song" ("It may be true he's got a sentence to serve / But ninetynine years, he just don't deserve."); Johnny Cash, "Cocaine Blues" ("The judge he smiled as he picked up his pen / Ninety-nine years in the Folsom pen / Ninety-nine years underneath that ground / I can't forget the day I shot that bad bitch down."); Ed Bruce, "Ninety-Seven More To Go" ("Ninety-nine years go so slow / When you still got ninety-seven more to go."); Bill Anderson, "Ninety-Nine" ("The picture's still in front of my eyes, the echo in my ears / When the jury said he's guilty and the judge said ninety-nine years."); Chloe Bain, "Ninety-Nine Years" ("The sentence was sharp, folks, it cut like a knife / For ninety-nine years, folks, is almost for life."); Guy Mitchell, "Ninety-Nine Years" ("Ninety-nine years in the penitentiary, baby, baby, wait for me, around twentyfifty-five we'll get together dead or alive.").

U.S. District Court Judge Thomas Hogan has upheld the search of Congressman William Jefferson's office. The opinion is here. [Via How Appealing.]

Here's the first paragraph:

"All laws should be made to operate as much on the law makers as upon the people; . . . Whenever it is necessary to exempt any part of the government from sharing in these common burthens, that necessity ought not only to be palpable, but should on no account be exceeded." 2 Founders' Constitution 331 (Philip B. Kurland & Ralph Lerner eds., 1987) (James Madison, The Militia Bill, House of Representatives (Dec. 16, 1790)).

This is too funny. Think Progress has the video of Sen. Trent Lott on Fox News with Neil Cavuto today. Lott blasts the Supreme Court decision in Hamdan v. Rumseld and then admits he hasn't finished reading it.

LOTT: I think some people are probably laughing at us. This is ridiculous and outrageous. Now in legal speak, let me say, I have not read the entire opinion, nor the dissents. But preliminarily my opinion is they probably didn't even have jurisdiction. They shouldn't have ruled the way they did. This is not a bunch of pussycats we're talking about here. These are people that have made it clear in many instances that they would kill Americans if they got out. This is Osama bin Laden's driver. And this is one other example of why the American people have lost faith in so much of our federal judiciary. This is a very bad decision in my opinion.

Update: The New York Times calls the decision "the most significant rebuff to date to President Bush. In a nutshell,

Justice Stevens declared flatly that "the military commission at issue lacks the power to proceed because its structure and procedure violate" both the Uniform Code of Military Justice, which governs the American military's legal system, and the Third Geneva Convention.The majority opinion rejected the administration's claims that the tribunals were justified both by President Bush's inherent powers as commander in chief and by the resolution passed by Congress authorizing the use of force after the Sept. 11. There is nothing in the resolution's legislative history "even hinting" that such an expansion of the president's powers was considered, he wrote.

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original post

The Supreme Court has ruled Bush's military tribunals at Guantanmo are illegal. The opinion is here (pdf).

The ruling, a strong rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court's liberal members in most of the ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan. Thursday's ruling overturned that decision.

Scotus Blog reports the Supreme Court did not issue a decison in the Hamdan case today. But, it issued two decisions unfavorable to criminal defendants.

In a ruling written by Chief Justice John G. Roberts, Jr., the Court concluded that states may bar foreign nationals from raising the issue of their treaty rights to talk with a consular officer , if they did not raise that issue at trial. The Court majority said that the outcome was dictated by the Court's 1998 summary decision in Breard v. Greene. The Court did not resolve the issue of whether individuals could sue to enforce the consular rights treaty, the Vienna
Convention.

In a 5-3 ruling, the Court decided that prison officials may deny newspapers, magazines and photographs to their most dangerous inmates. The plurality opinion by Justice Stephen G. Breyer upheld such a ban. Justice Samuel A. Alito, Jr., took no part. He had dissented when the Third Circuit struck down the ban.

by TChris

The police have little incentive to obey the constitutional requirement to knock and announce their presence before busting down doors to serve search warrants, thanks to a 5-4 Supreme Court decision issued today. Justice Alito provided the tie-breaking vote.

The Court ruled that suppression of the results of the search -- the usual remedy when evidence is acquired in violation of the Constitution -- is too extreme when police fail to knock-and-announce. The dissent voiced the obvious response:

"The court destroys the strongest legal incentive to comply with the Constitution's knock-and-announce requirement,'' Breyer wrote for the four dissenters.

Police in Wisconsin arrested a man they suspected of having ingested a bag of heroin. I guess they were in a hurry, because they made him drink six doses of a laxative to cause him to excrete the bag faster.

The Wisconsin Supreme Court yesterday upheld the police action.

The laxative was reasonable because police had a clear expectation it would help reveal evidence of a crime, the court ruled in reversing a state appeals court decision. The laxative also may have reduced the danger Tomas Payano-Roman would have faced had the bag ruptured in his body, the high court's decision said.

"The government would have had more difficulty in proving its case without use of the laxative," Justice Ann Walsh Bradley said in writing for the majority.

Is anyone else appalled by this decision? You can read the decision here. [Via How Appealing.]

by TChris

Polygamy has been in the news lately, perhaps because the HBO series Big Love has focused public attention on the practice. Polygamist Warren Jeffs made the FBI's 10 Most Wanted List, and Sean Hannity wonders whether efforts to capture him will lead to a Waco-style standoff. Polygamist leader Winston Blackmore, who reportedly has 28 wives, contends that all polygamists aren't as bad as Jeffs, and complains that he's being persecuted by Canadian authorities.

In the meantime, the Supreme Court of Utah ruled Tuesday (pdf) that the state's prohibition of bigamy is constitutional. The decision, which arose in the case of a former police officer who married two sisters, echoes a U.S. Supreme Court decision from 1878 (pdf) upholding Utah's law against a claim that the prohibition infringed on the free exercise of religion.

by TChris

States from time to time attempt to craft their rules of evidence or procedure, either legislatively or judicially, to make the prosecution's case easier to prove while disadvantaging criminal defendants. Like many states, South Carolina has a rule limiting the circumstances under which a defendant can introduce evidence that a third party is actually the guilty culprit. The South Carolina Supreme Court expanded that rule by disallowing evidence of third party guilt when there is strong forensic evidence pointing to the defendant's guilt.

In a unanimous opinion authored by its newest Justice, the U.S. Supreme Court today reversed the conviction of Bobby Lee Holmes. Criminal defendants have a constitutional right to present a defense, and while that right may be balanced against reasonable rules of evidence and procedure, South Carolina went too far in its attempt to rig the system in the prosecution's favor. The South Carolina court assumed that the forensic evidence was so strong as to negate the evidence that someone else was guilty, but didn't seem to notice the defense evidence that substantially weakened the probative value of the forensic evidence.

by TChris

The Freedom of Information Act has little value if government entities simply ignore requests for information. A federal judge concluded yesterday that the Air Force does just that.

[U.S. District Judge Rosemary] Collyer found that the Air Force had no defense - or essentially conceded - that it had failed to respond to requests under the Freedom of Information Act for up to 18 years in at least one case. The Air Force also ignored appeals of its denials of access to records for up to nine years, she said. ...

In a 12-page opinion, Collyer chastised the Air Force for its "dismal record" in responding to requests by the [National Security Archive], whose collection of documents is used by historians, academics and other researchers interested in national security.

The Air Force thought the judge should be satisfied with "We promise to be better from now on." She wasn't, in part because its "new Web-based system for tracking FOIA requests" is unfunded.

by TChris

Phill Kline, the Attorney General of Kansas, has an unhealthy obsession with teenage sex. Apart from his unsuccessful attempt to learn the identity of every minor in Kansas who obtains an abortion (discussed here and here), Kline issued an opinion that purported to require all health care providers to alert the government when they learn that a minor had engaged in sexual activity or wants contraception. Kline's theory was that Kansas law equates sex with abuse when one or both of the participants is under the age of 16 -- an interpretation that would trigger mandatory reporting of "abuse" whenever a health care provider learned that a minor was in a sexual relationship, regardless of the age of the other participant or the child's willingness to participate.

Recognizing the lunacy of that position, federal District Judge J. Thomas Marten told Kline that he doesn't understand Kansas' mandatory reporting law. The law requires reporting of abuse that causes injury, and sex -- despite what Kline thinks -- isn't inherently injurious.

In yesterday's decision, Judge Marten said Mr. Kline's opinion improperly conflated illegal sexual activity -- intercourse, oral sex and lewd touching by anyone under 16 are prohibited in Kansas -- with abuse.