So, the New York Times today has up another in their series called “Room For Debate”. Today’s topic is “catcalling”, and the supposedly relevant question for debate is “Do We Need a Law Against Catcalling?” The ‘debate” is based on the “catcalling video” that has gone somewhat viral the last couple of days. First off, let us stipulate that catcalling is disgusting and reprehensible, and there seems to thankfully be a bipartisan consensus on that. But does the New York Times make it a fair debate when it comes to criminalization of public speech? No, of course not, there are three contributors who specialize in seeking to restrict clear First Amendment speech on this subject against one token policy guy from the ACLU who gives the “whoa, hold on there” position. Hardly a “fair and balanced” fight, but the framing itself makes it crystal clear the Times did not want a fair fight.
Frankly, the fact that the NYT was determined to push the knee jerk attack on free speech side was patently obvious from the fact of their title “Do we Need a Law Against Catcalling” and that is exactly what they put up. Which, considering that the New York Times has led the pantheon of First Amendment law for decades, is a rather astounding and depressing thing. I guess the Times’ love and protection of the First Amendment tails off quickly when their own rear ends and press rights are not on the chopping block. A disturbing position.
This is but the latest example of a growing victim culture trend that is willing to abandon the founding Constitutional principles, and shift inherent burdens of proof, out of emotional angst. There is the attempt to criminalize speech in via so called “revenge porn” laws. There is the astoundingly intellectually backward desire of Ezra Klein to eliminate due process and shift the burden of proof onto the accused – presumed guilt – in state government sponsored punitive proceedings in state universities. And now this.
These are all feel good laws fighting against things that are detestable – revenge porn, non-consensual sex and flat out rape on college campuses, and verbal harassment of women on city streets and in public places. Those are all terrible things that we should all be firmly against, and I am. But just because there are terrible things out there in our world does not mean there is always an appropriate path to eradicate it through ever more broad and vague criminal laws. That is a path our founders took great care to protect against, and one we would do well to keep in mind when emotions try to overcome Constitutional protections.
So, in conclusion, no, we most certainly do NOT need a law against catcalling. Furthermore, in the true spirit of Halloween, I boo and hiss in the general direction of the hypocritical New York Times, who apparently view the First Amendment as protecting them, but not the rest of us non-journalist common citizens.
[Note: It is my belief that this will be one of multiple entries from a group of friends who are either practicing criminal defense attorneys, or heavily involved in the criminal justice system. Our own “More Room For Debate” if you will, because the Times will never seek out actual practicing criminal defense lawyers when talking about, you know, criminal laws. Those in for the debate, or hopefully contemplating it, are: Scott Greenfield from Simple Justice, Gideon from A Public Defender, and Liliana Segura from The Intercept. All of these people, and their blogs, are simply superb, and you should be reading them. When and if they post their entries at their sites, I will update with links here]
Update 1: And Scott Greenfield has weighed in with his take.
What a difference a day makes. After several days of police wilding in the streets of Ferguson, Missouri Governor Jay Nixon removed local and county control of policing and ordered the head of the Missouri State Patrol to take over. The change in tone was immediate, instead of making war on the citizens of Ferguson, last night the police walked side by side with the protesters and engaged them as actual citizens. Suddenly things were better and hope returned to the town.
The move pretty clearly should have been made a couple of days earlier, but Gov. Nixon was right to make it and made a strong and unifying statement when he announced the move.
But governor Nixon’s work is not done. It is not just the local police that displayed impropriety and lack of fitness for the job in relation to the aftermath of the Michael Brown killing…so to has the local prosecutor, Robert McCulloch.
Late yesterday, McCullogh said this to local reporter Paul Hampel:
#MikeMike STL County prosecutor Bob McCulloch called me. Said Nixon replacing Chief Belmar with HWP Capt Johnson was illegal, disgraceful.
— paul hampel (@phampel) August 15, 2014
#MikeMike "Nixon denigrated the men and women of the County Police Department and what they've done." –McCulloch
— paul hampel (@phampel) August 15, 2014
First off, McCulloch’s statements displayed a remarkably tone deaf and tin ear, not to mention an affinity for the local police that is directly at odds with the duty of prosecuting the officer who killed Michael Brown. And make no mistake, the killing is shaping up as a straight up execution of Brown by the soon to be named officer. Yet another eyewitness came forward last night (in some superb work by MSNBC and Chris Hayes) reinforcing and corroborating the description previously given by Dorian Johnson, the youth who had been with Brown.
So, the statements of prosecutor McCulloch, who as the elected prosecutor for St. Louis County, would have presumptive jurisdiction of any prosecution, already place him in a position of potential bias.
But there is more in McCulloch’s background that makes him inappropriate for this case. As described in a Reuters background article on McCulloch:
As St. Louis County prosecuting attorney, McCulloch is responsible for deciding whether to pursue criminal charges against the police officer who fatally shot 18-year-old Mike Brown on Saturday outside a low-income apartment complex in Ferguson, Missouri.
The shooting of the unarmed black teenager sparked days of rioting and protests in Ferguson and surrounding communities and some residents say the mostly white ranks of local and county law enforcement officials are not objectively investigating the case.
McCulloch, 63, has held the top county prosecutor’s job for 23 years and has promised an impartial investigation of Brown’s death. But protesters say McCulloch, whose police officer father was killed in the line of duty when McCulloch was a child, should be removed from the case.
“I don’t trust Bob McCulloch,” community activist Anthony Shahid said as he helped lead a march by roughly 100 people at the St. Louis County Justice Center this week. “His father was killed by a black man.”
Should that history disqualify a prosecutor in a normal situation? No, probably not. But this case is not at all a normal case. The eyes of the world are now on Ferguson, and the town is still distrustful of the local authorities and frayed at the emotional seams.
The investigation and charging determination have to be beyond reproach. It has to be done right and the citizens and victim’s family must trust justice is being fairly done. At this point McCulloch cannot be the man who leads that effort. Not now.
And there is a clear path for Governor Jay Nixon to remedy the situation. Chapter 27 of the Missouri Revised Statutes, specifically §27.030, provides:
When directed by the governor, the attorney general, or one of his assistants, shall aid any prosecuting or circuit attorney in the discharge of their respective duties in the trial courts and in examinations before grand juries, and when so directed by the trial court, he may sign indictments in lieu of the prosecuting attorney.
Governor Nixon has the clear authority to order Missouri Attorney General Chris Koster to aid this prosecution and guide the grand jury investigation. In order to give the community confidence a fair process and justice is being delivered, that is exactly what the Governor should do.
[PS Note: While the post title talks of “removal”, and there may or may not be a separate path for that available to Nixon under “emergency powers”, §27.030 only provides a path to have the AG, or his designee, be effectively a co-leader of the prosecution, both in the grand jury and in the trial court. This would be a substantial move, in and of itself, in that a more neutral party than McCulloch would be involved along side him, with full rights to participate in proceedings.]
Yammering on the internet is not hard work, in fact it is blindingly (and sometimes maddeningly when it is pointed in your direction) easy. Getting heard, and functionally interacting in a fashion that can contribute to the real focus and discussion, however, is hard. For my part, I often carp enough about the failings of big media that it is only right to give praise where due.
Today credit is due to CNN’s Jake Tapper. Because he cares.
Two nights ago, rightly or wrongly …. but I think rightly … I laid into CNN for their overbearing focus on repetitive, and somewhat mindless, continuing drivel on celebrity. That was, of course, in relation to Robin Williams’ death. A noteworthy, sad, and tragic event for sure, but there was only so much news, the rest was pure Entertainment Tonight like pathetic drivel.
So I went after CNN, and I tacked Jake Tapper’s twitter handle on the end. I did so not because I thought he was the prime offender producing the overall CNN news product, but because I knew, from prior interaction, that Jake actually gives a damn and and is a contact point at CNN who would care. And maybe…maybe…be a change point. That was both fair, and unfair to him personally, at the same time.
I am pretty sure both CNN and Jake were bombarded by by an untold number of missives of the same variety. I don’t how how other inflection points at CNN dealt with what was surely a lot of feedback, but the fact Mr. Tapper took the time to take umbrage, and discuss…and think…seems significant and admirable to me. And I admire that.
I thought about writing this post long before I saw the following, but I was off with clients and court appearances, and could have easily shined it on, as I do with so many posts I want to write but don’t get to.
Until I saw something from Mr. Jake Tapper today that was just awesome.
But then, not long later, came this:
Well, to be sure, this is the stuff even a critic of journalism can love and applaud. You know why? Because not only is solidarity with journalists under grand jury and governmental oppression admirable (I have some experience in GJ targeting), it is the only, and only proper, thing that can be done.
There are not many out there to be so applauded. Maybe tomorrow there will be an issue, and moment of difference, on a different case. So it goes, and so be it.
But, now, James Risen stands exposed and on his own. As a man, and as a journalist, Tapper stood up and gave public square to his voice. Good on him.
Tonight, I am glad Jake Tapper is out there and is willing to engage. Tonight he did one hell of a report from Ferguson Missouri. Even if a big part was consumed by press conference feed. But, before and after, he made his voice clear. That is not exactly a common thing. It is to be commended.
Give the man credit, he was there, and he cares. And I will buy him a drink.
With the latest furor over minor children and the border already in full swing on top of all the other immigration fear mongering going on in this election year, you would think you had about heard it all when it comes to preening idiotic nonsense from “conservative” politicians.
Exhibit A: This somewhat beyond amazing story of Adam Kwasman, a current member of the Arizona State Legislature and a candidate for Congress in Arizona LD-1. Kwasman, in a mad rush to the gun nut bigot fest protest of immigrant children in southern Arizona, inspired by the Murietta hatred, saw a bus load of YMCA campers in a school bus on their way to summer camp. Kwasman, displaying every ounce of his razor sharp Einstein like brilliance, immediately concluded they were evil immigrants.
He [Kwasman] had tweeted from the scene, “Bus coming in. This is not compassion. This is the abrogation of the rule of law.” He included a photo of the back of a yellow school bus.
Kwasman later told me he saw the migrant children. “I was actually able to see some of the children in the buses. The fear on their faces…. This is not compassion,” he said.
But there was a problem with Kwasman’s story: There was no fear on their faces. Those weren’t the migrant children in the school bus. Those were children from the Marana school district. They were heading to the YMCA’s Triangle Y Camp, not far from the Rite of Passage shelter for the migrants, at the base of Mt. Lemmon.
12 News reporter Will Pitts, who is at the protest scene, says he saw the children laughing and taking pictures of the media.
Watch Brahm Resnik make an idiot of Kwasman at this link. I will not embed the video because I cannot get rid of the auto play command.
There has been a lot of commotion over Wednesday’s decision by the US Trademark Trial and Appeal Board to cancel several trademark registrations of the Washington Redskins originally recognized back in the 1960′s by the United States Patent and Trademark Office (PTO). The full decision is here. It is quite long, detailed, and, at least facially, pretty compelling in its finding that the trademarks are “disparaging to Native Americans”.
Before I go further, let me say that I agree with those who think Daniel Snyder and the Washington Professional Football Franchise should change their name. It may not be the most pressing issue in our society, but it is something for which the time has come. Josh Marshall posted his thoughts on this subject at Talking Points Memo, and I think he put it all in excellent perspective and I agree with his conclusions.
The simple fact is we shouldn’t be using whole peoples as mascots for sports teams. Whether or not Indians in America today find it offensive is almost beside the point. The fact that most do is just an extra reason to do away with the practice.
With all I’ve said, there’s a part of me who feels like, ‘We really can’t have the Cleveland Indians anymore?’ It feels like a loss – part of the landscape of American sports I’m attached to. But it’s time.
Well said and, again, I agree. Josh’s entire piece is not long and is worth a read.
That said, and as much as I would like to see the name changed, I have trepidation about the government forcing the issue through agency decisions on what is proper speech, and what is not.
Tradenames and trademarks are, by their nature, really public speech and, thus, at least where they interact with the government, should be entitled to First Amendment protection. Now First Amendment protection is never absolute, but it is presumptively extremely broad. Likewise, First Amendment protections are against governmental action restricting free speech, not necessarily against private persons or entities. If I refuse to listen to you or to print what you have to say, that would be censorship, but it is not First Amendment action. If I am the government and censor you, then that is a different matter and there is a First Amendment issue.
So, here, the TTAB has taken it upon itself to restrict, at least in some regards, the free expression of the Redskins, via refusal to extend the same protection offered other “acceptable” speech and they do so by obvious decree of a governmental entity. Now the TTAB decision made out a VERY thorough and facially compelling case for Continue reading
I have not been there in a while, but I have been there quite a bit before, and the Isla Vista/Goleta area surrounding UCSB is everything good and bad that surrounds any major university. It is a melting pot teeming with brilliant young minds, eager to expand and ready to experiment and socialize. It is also cliquish and too easy to separate the in from the out crowd and, sometimes, rich from poor. Above all else, at least from my visits there when I was younger, IV was one wild party that could be anywhere along a couple of key streets, if not indeed out in the streets themselves. It was one hell of a good time.
But not this Memorial Day weekend. Something different and jolting happened, leaving seven souls dead, seven more injured and yet another community, and national audience, grieving and reaching for answers.
I don’t know what the answers are, and to a great extent, I do not think the pathology of this incident is yet ripe enough to draw them with any real definition. That has not, of course, stopped the light speed social justice court of Twitter and the internet.
The reaction on Twitter has run the spectrum from sober to hysterical. If you are on Twitter, you have seen it, if you are not, it is not hard to imagine if you are internet savvy enough to be reading the instant post. Speaking only for myself, however, I have been a little disturbed by the alacrity with which valuable social justice movements, and their participants, have glommed on to a tragic spree crime as the defining vehicle for their arguments, whether it be women’s rights, gun control or otherwise.
It strikes me, while certainly all of these things figure into the Rodger situation to some extent, hitching up to a spree murder by a mentally disturbed individual is not exactly a great vehicle for your social justice movement. It is more complex than that, and it is too easy in haste to mistake manifestations for root causes. Post hoc, ergo propter hoc if you will.
And, while I know the intent was good, I have found the “hashtag advocacy” via such tags as #YesAllWomen, and the reflexively responsive #NotAllMen, to not necessarily do all that much to further the well meaning intention of their adopters. While some of those tweets have seemed germane and helpful, a great many seem Continue reading
[Significant Update Below]
My hometown paper, the Arizona Republic, broke some critically important news a few minutes ago. The story by Dennis Wagner, a superb reporter at the Republic for a very long time, tells of a monumental shift in the policy of DOJ agencies in relation to interrogations and confessions of those in custody.
There was no news release or press conference to announce the radical shift. But a DOJ memorandum —obtained by The Arizona Republic — spells out the changes to begin July 11.
“This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA) the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody,” says the memo to all federal prosecutors and criminal chiefs from James M. Cole, deputy attorney general.
“This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,” such as in the questioning of witnesses.
This has been a long time coming and is notable in that it covers not just the FBI, but DEA, ATF and US Marshals. Calling it a monumental shift may be, in fact, a bit of an understatement. In the course of a series of false confession cases in the 90′s, attempts to get this instated as policy in the District of Arizona were fought by the DOJ tooth and nail. As other local agencies saw the usefulness of audio and/or video taping, DOJ authorities fought the notion like wounded and cornered dogs. That was not just their position in the 90′s, it has always been thus:
Since the FBI began under President Theodore Roosevelt in 1908, agents have not only shunned the use of tape recorders, they’ve been prohibited by policy from making audio and video records of statements by criminal suspects without special approval.
Now, after more than a century, the U.S. Department of Justice has quietly reversed that directive by issuing orders May 12 that video recording is presumptively required for interrogations of suspects in custody, with some exceptions.
What has historically occurred is an agent (usually in pairs) did interviews and then recounted what occurred in what is called a “302″ report based on their memories, recollections and handwritten notes (which were then usually destroyed). This created the opportunity not just for inaccuracy, but outright fabrication by overly aggressive agents. Many defendants have been wrongfully convicted, and some who were guilty got off because competent defense attorneys made fools of agents, and their bogus process, in court.
In short, presumptive taping is smart for both sides, and absolutely in the interests of justice. It still remains inexplicable why the DOJ maintained this intransigence so long when every competent police procedures expert in the world has been saying for decades that taping should be the presumption.
Now it should be noted that the policy will only apply to “in custody” interrogations and not ones where there has been no formal arrest which is, of course, a gaping hole considering how DOJ agents blithely work suspects over under the ruse they are not yet in custody. There will also clearly be an exigent circumstances/public safety exception which are also more and more frequently abused by DOJ (See: here, here and here for example).
So, we will have to wait to see the formal written guidance, and how it is stated in the relevant operation manuals for agents and US Attorneys, to get a full bead on the scope of change. And, obviously, see how the written policies are implemented, and what exceptions are claimed, in the field.
But the shift in interrogation policy today is monumental and is a VERY good and positive step. Today is a day Eric Holder should be proud of, and it was far too long in arriving.
UPDATE: When I first posted this I did not see the actual memo attached to Dennis Wagner’s story in the Arizona Republic; since that time I have been sent the actual memo by another source, and it is also available as a link in the Republic story that broke this news. Here are a couple of critical points out of the actual memo dated May 12, 2014:
The policy establishes a presumption in favor o f electronically recording custodial interviews, with certain exceptions, and encourages agents and prosecutors to consider taping outside of custodial interrogations. The policy will go into effect on Friday, July 11, 2014.
By my information, the gap in implementation is because DOJ wanted to do some top down discussion and orientation on the new policy, which makes some sense given the quantum nature of this shift. My understanding is that this is already ongoing, so DOJ seems to be serious about implementation.
But, more important is the news about non-custodial situations. That was a huge question left unanswered initially, as I indicated in the original part of this post. That agents and attendant prosecutors will be encouraged to record these instances as well is, well, encouraging!
The exceptions, which are outlined is Section II of the memo are pretty much exactly as I indicated should be expected above.
Notable in the Presumptions contained in Section I of the memo is that the rule applies to ALL federal crimes. No exceptions, even for terrorism. Also, the recording may be either overt or covert, which is not different from that which I have seen in many other agencies that have long recorded interrogations. Section III specifically excludes extraterritorial situations from the rule. Frankly, I am not sure why that is necessary, the ability to record is pretty ubiquitous these days, extraterritorial should be no problem for presumptive recording.
Those are the highlights of the memo. It is short and worth a read on your own.
As you probably know by now, yesterday was the tenth anniversary of the death of Pat Tillman. The media has been replete with stories, remembrances, tributes and the like from the sad tale of a fellow Army Ranger who lives with the fear it was he who shot Pat, to calls for Pat to be in the Pro Football Hall of Fame, to Dave Zirin’s renewed questions on the events surrounding Pat’s death and many others.
To be honest, I have mixed emotions about it all. It is fantastic Pat Tillman is so fondly and deeply remembered, but at the same time, it stirs negative emotions from how much Pat became a symbol, first for the pro war crowd, and then the anti-war crowd upon his death. The Pat Tillman I knew would have been more than uncomfortable with both and, similarly, uncomfortable with much of the hagiography over the last couple of days.
For these reasons, I vacillated with whether to join in the fray; part of me just felt uneasy with it all despite my respect for Pat. In fact, it is my deep respect for Pat that gave me pause. But there is another side of Pat Tillman that really needs more emphasis.
The article I most suggest is a long and beautiful piece in The Arizona Republic centered on Marie Tillman, Pat’s long time love and, now, widow. Marie talks a lot about Pat the man, their growing up together in California, move to Arizona, and how she has come to both accept, and at the same time move on in peace from, Pat’s death. It is really beautiful, please read it.
As Marie Tillman wants to focus on who Pat Tillman the person was, so too do I. Back on the day the Phoenix Cardinals played the Pittsburgh Steelers in the Super Bowl, on February 1, 2009, we did a post here at Emptywheel entitled “Pat Tillman’s Super Bowl”. The first part was by Marcy and was a great discussion of the problems and questions with the government’s conduct after Pat’s death, and I suggest you read that.
The second part of “Pat Tillman’s Super Bowl” was written by me and was exactly what I am trying to convey today: Pat was a man, not just a symbol. He stood for so much that is good as a human, and that seems to get lost in all the rah rah symbolism and martyrdom. I cannot say it better than I did then, so I am going to reprint that portion here in this post:
Earlier this morning, Marcy posted this serious and wonderful piece on Pat Tillman, and the Super Bowl he is missing. Unfortunately, it has turned somewhat, and predictably, into a knock down drag out on conspiracy theories and acts, I would like to return for a moment to the subject of her post, namely who Pat was, and what he did, which is why the answers his family seeks are so important in the first place.
First off, Pat gave up a large contract with the Cardinals to join the Army after 9/11. That is well known and part of the lore. What you should also know is that the contract offer could have been much bigger than that, but Pat was willing to take less money than he was worth on the open market to stay with the Cardinals because he believed in their redemption and he loved the community of Tempe and Phoenix. He had grown roots here from his four years at Arizona State and was determined to see the Cardinals through the transformation into a winning team. The contract he walked away from with the Cardinals was for about 3.6 million; he had turned down previously a 9 million dollar multi-year contract with the St. Louis Rams, right in the middle of their Super Bowl years, in order to stay with and build the Cardinals in what he considered to be his home at the time. That is the kind of man that Pat was.
Pat didn’t give a damn about money and the trappings of celebrity. Years after already being a high paid and wealthy NFL star, you would still find Pat traversing the streets of Tempe on his bicycle, looking like a hippy with his long hair and book bag. This was literally how he would go to work every day at the Cardinals training center in South Tempe. Pat was an avid reader. Of everything. He loved politics and world events, and there was nothing he loved more than spirited discussion of the same, whether it was current events, WW II, or ancient European battles. And he could discuss all intelligently, deeply and passionately. Pat knew business and marketing as well, that was his major at ASU and he was brilliant at how he understood, and could see through, the forces at work in our economy.
Pat was an iconoclast. He was his own man and would back down from nothing, and no one, if he thought he was right. This is what made him an odd fit for the military. He had every ounce of the heroism, valor, trust and honesty that the military has always purported to stand for, and then some. But he was not a yes man and was trained, from my estimation since birth, to question authority, especially if it was malignant and wrong. I believe this may have caused a rougher ride for him in the military than most would have expected, or would suspect even now, from the outside, and almost certainly played a huge role in how his death was handled, irrespective of how his death occurred. LabDancer spoke the word in comments:
Pat’s death was caused by our side; our side covered that up, employing things our side knew were untrue; our side used that same cover to distort, turn and pervert the story of his death into a symbol aimed at promoting a falsehood: that Pat died pursuing a myth our side knew for a fact he’d personally determined beforehand to be a lie – meaning that, in end, our side rendered an obscenity from Pat’s death. That’s more than enough to earn him the status emptywheel submits as his due.
That is right on the money. It is also what motivated me to write this, the use of Pat is, at this point, not just by the Bush Administration for their glory, but by the contra for theirs as well. From being a player who loved football as a game, Pat has become the football in the game. That is wrong, very very wrong.
As you may surmise here, or as some may recall from discussions at The Next Hurrah long ago, I had the privilege of knowing Pat Tillman a little. I did not know him well, but well enough to get the measure of the man he was. I used to live a little less than a mile from the Cardinals headquarters and practice facility in South Tempe. On days when I worked at home, I used to ride my bicycle to a little deli, Capistrano’s, between my house and the Card’s facility. It was there that I met Pat, who also stopped in on his bicycle, and had a few long lunch conversations with him. He was everything he has been made out to be and more. He was twenty years younger than I, but you would never know it. He was such a deep and diverse thinker that he was almost the antithesis to the world as we currently know it.
The nation, and the world, lost a lot with Pat Tillman’s death. When we talk about the type of people we need to foster and grow to lead into the future, he was a prime example. That, to me, is why his loss stings, and lingers, so deeply. Pat’s family, the nation, and the world deserve the answers to what happened, it is, and remains, important.
But, above and beyond all else, what people should be taking away is not the dickering over the mechanism and coverup of his death, although that is important; but more importantly, the facts and honor of his life, beliefs and hopes. Honor and fight what he stood for, and what he wanted the country to stand for, that is what he would want.
Pat Tillman was quite a guy. He learned, and lived, a lot in his all too short stay on this earth. He was so much more than the football and war hero, and symbol, that has comprised most of the remembrances on this tenth anniversary of his death.
Pat Tillman had a love for life, for his wife Marie, for literature, and for all knowledge he could possibly absorb, and he could absorb a lot. He was a critical thinker. And he was a great guy. Let him be remembered, and honored as a role model, for that too. RIP.
Col. Morris Davis is, at least for my money, an American hero. He served and fought not only for his country, but for the Constitution he swore to protect. The subject of what happened to him at the hands of the very government he defended deserves a much longer, and deeper, dive than I have time for in this post. We will likely come back for that at a later date as it seems as if the legal case Col. Davis brought to correct the wrongs done to him will likely go on forever.
And the going on forever part is the subject of this post. Col. Davis was scheduled to have a hearing in United States District Court in Washington DC tomorrow in front of Judge Reggie Walton. But the hearing was postponed. And that is the problem, this is the FOURTEENTH (14th) TIME hearing on Col. Davis’ case has been delayed. One delay was due to a conflict on Judge Walton’s part, and one because the offices of Davis’ attorneys at the ACLU in New York were substantially damaged by Hurricane Sandy. Other than that, the delay has been at the hands of an intransigent and obstreperous DOJ. If the actions of the DOJ in relation to Col. Davis are not “bad faith”, it is hard to imagine what the term stands for.
Now, to be fair, it appears the latest delay was at the unilateral hand of the court, as yesterday’s minute entry order reads:
In light of the fact that potentially dispositive motions remain pending, it is hereby ORDERED that the status hearing currently scheduled for Friday, February 21, at 9:15 a.m. is CONTINUED to a date and time to be determined by the Clerk.
The problem with that is that the “dispositive motions” the court speaks of as being “pending” have been “pending” for a VERY long time, since July of last year. And the case itself has been going on since the complaint was filed on January 8, 2010.
Why is it taking so long you ask? Because of the aforementioned bad faith and obstreperousness of the Department of Justice, that’s why. To get an idea of just what is going on here, a little background is in order. Peter Van Buren gives a good, and relatively brief synopsis:
Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.
Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)
Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done.
Yes, you read that right. Col. Davis was fired from the job he truly loved at the Congressional Research Service because he, on his own time as a private citizen, exercised his First Amendment right to speak. As one of Davis’ pleadings puts it:
Col. Davis was unconstitutionally removed from his position at the Library of Congress’ Congressional Research Service for writing opinion pieces in the Wall Street Journal and the Washington Post expressing his nonpartisan, personal views on the failures of the American military commissions established to try detainees at Guantánamo Bay, Cuba. His speech lies at the very core of the First Amendment and exemplifies the kind of speech that federal courts have been most vigilant in protecting from government retaliation.
The full pleading that quote came from, Col. Davis’ response to the government’s motion for summary judgment (one of the “pending dispositive motions”) can be found here and is a good read if you are interested in more background.
That is exactly what happened and what is at stake. And you do not have to take my word for it, Judge Walton thinks it is a solid and valid claim too. Here is language from Judge Walton in an order in late January 2010, not long after the case was filed:
The Court is satisfied that the plaintiff has established, at least based on the record before the Court at this time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh in his favor. Essentially, the record before the Court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers. Regardless of the defendants’ contention to the contrary, it appears that the content of the plaintiff’s published opinions was one of the reasons, if not the primary reason, he was fired, i.e., because the plaintiff took a position on the prosecution of detainees being housed at the United States military’s Guantánamo Bay facility which the Congressional Research Service felt would call into question its impartially as to any policy recommendation it would make and any research it would conduct on that issue. This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published. The plaintiff’s likelihood of success position therefore is well-founded, at least with respect to the record the Court now has before it. And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights. (citations omitted)
So, there is really no question but that protected First amendment rights were involved, and that Col. Davis was wrongfully fired for exercising them. Makes you wonder why the DOJ would string him out and fight so hard in a case that is only about the rights and not even about the money damages he suffered as a result (that would have to be litigated in a separate action).
As the graphic at the top questions, why is the DOJ willing to give free speech rights to a terrorist at Guantanamo and not to Col. Morris Davis? Bad faith is the answer. Complete, scandalous, bad faith.
It has now been three years to the day since Jared Lee Loughner went to the the Safeway Supermarket at Ina and Oracle Roads in Tucson where Congresswoman Gabby Giffords was holding her “Congress on the Corner” meeting for her constituents. The rest, as they say, is history. Tragic history. Giffords was grievously wounded, six lives taken and others seriously wounded.
One of the lives lost was that of the Chief Judge of the Arizona District, John Roll. This morning, I saw Andrew Cohen of CBS News tweet out a quick remembrance of Judge Roll, with links to two articles Andrew wrote back in 2011 on him and his loss. The articles are here and here, and are excellent, please click through and read them. The point in the second article regarding the dangers our federal judiciary face is especially salient.
I too might have have tweeted or reposted an old post I had done on Judge Roll, but I did not really do one. I knew John Roll, and at one time long ago, well before she was a Congresswoman, knew Gabby Giffords. I also lived, for a little over a year in graduate school, in the Catalina Footlills not that far from Ina and Oracle, and knew the Safeway store where it all happened as well. The wounds, and the longer term scars, from the January 8, 2011 shooting were too real for me back then. I mostly funneled whatever insight and thoughts I had to other, more traditional reporters, and others, covering the shootings and the legal proceedings as to Loughner. In fact, it took me three weeks to even complete the post I was writing that Saturday morning the moment the news of the shooting started coming in on the television. The only real substantive post I recall writing was on the way the federal government bigfooted the state authorities, to wit Pima County Attorney Barb LaWall, as to the prosecution of Jared Loughner.
So, after seeing Andrew Cohen’s remembrance, and with a little prodding from Andrew, I’d like to give my own brief honor to Judge John Roll.
As I said above, I knew John, and he was one of the finest men, not to mention judges, I have ever met. Kind, generous, helpful and compassionate. Tough as a judge, but fair, and extremely smart. Just a good man and great judge. The very kind of traits that led him to drop by Gabby’s local Congress on the Corner event three years ago today. Roll had been in downtown Tucson at Saturday Mass, knew of Gabby’s event and decided to stop in on the way home and say hi.
I knew Judge Roll almost exclusively professionally, although I did talk to him at a few social occasions over the years too. I first came in contact with him in the late 1980′s when, as a relatively new and wet behind the ears criminal trial attorney, I had a felony trial case down in Tucson that went sideways. The emergency remedy here in such circumstances is an extraordinary writ proceeding, known as a “special action”. They are hurried affairs, and back then were referred to a single “hot judge”, who was basically the on call jurist for the week for special actions. I, by sheer luck, got John Roll.
I was out of my normal home in the Phoenix area, and in the jurisdiction of a completely different division of the Court of Appeals, Division Two in Tucson. A lesser judge could likely have chewed me up and spit me out because I was unfamiliar with that division’s nuances, and I had a couple of technical pleading errors. Instead, I ran into the most gracious, helpful and understanding of men and jurists. John Roll made such an impression that I went out of my way to stop in and chat with him any time I was down in Tucson, whether in the Court of Appeals, or later in Federal District Court after he was nominated and confirmed in the last portion of George H.W. Bush’s term in office.
Looking back, it was really quite remarkable; you just do not get that kind of interaction, and gain that kind of relationship, with judges very much any more. But that is precisely the kind of guy John Roll was.
The death of John Roll cost Arizona not only a great man, but the District its chief judge. Despite the “emergency status” Arizona was already under at the time of his death, only now is the Obama White House getting the District of Arizona close to fully staffed with judges. But time marches on, and it will here, but let Judge John Roll not be forgotten.
A more physical remembrance is embodied in the John M. Roll United States Courthouse, a satellite courthouse for the Southern Division of Arizona’s Federal Court District located in Yuma, Arizona. The facility had been planned under John’s leadership of the District, but was completed and named for him after his death. The John M. Roll United States Courthouse opened for business on Monday December 16, 2013.
Rest in peace John Roll.