Law

Jan Brewer’s Veto of SB-1062, Timing and Best Interests of Arizona

Grand Canyon SunriseYes, I framed the title of this article as if Governor Brewer has already vetoed the discriminatory piece of legislation known as SB-1062. Because it is a done deal and, frankly, has been from the start. I am thankful for all the support that national people, and regular citizens and groups from all over the country, have given to the veto effort, it has been extremely helpful in giving Brewer cover for the veto to come.

But it was coming anyway, and that was the case from the moment the bill was passed out of the state legislature late in the day last Thursday, February 20.

Indeed, as I write this, MSNBC has Joy Reid on the air babbling about “WHAT HAS TAKEN BREWER SO LONG!”. But that is symbolic of the hyperventilating demagoguery that has also been part of this discussion. The simple fact of the matter is that the bill was not even transmitted to the Governor’s office until Monday the 24th and Brewer did not return from her trip to Washington with other governors until late Tuesday the 25th. So, despite the hue and cry, the first real opportunity for Brewer to formally enter her veto is today. So, what is “taking so long”, at least until today, is not really a mystery in the least.

Now, let’s talk about why the veto was a foregone conclusion if you really understand Arizona politics. First off, let me start by saying that the often popular characterization of Jan Brewer as a raging ideological shrew is not particularly accurate on the whole. In fact, my take on her going back to the 1980s, when she was a somewhat amusingly unfiltered voice in the state house of Representatives, is that she is personally a decent lady, albeit one of a conservative bent. She is, however, an aggressively pragmatic politician, which factors into the following reasons she was going to veto SB-1062 from the get go.

Here are several of the critical reasons why:

1) Brewer took some hard lumps, and rightfully so, in the matter of SB 1070, the 2010 immigration enforcement law that was discriminatory in animus, and saw up close and personal what wrath could be generated by business and the national public on an issue like this. And, by the way, it should be noted that SB-1062 does not just provide enhanced sanction of discrimination against the LGBT community, but potentially a whole spectrum of other groups. These groups matter, and Brewer knows it.

2) Brewer has, for pretty much the entirety of her career been shepherded and advised by a close group of advisors, with the most primary one being Chuck Coughlin. There are others of current significance, including Grant Woods and Matthew Benson. Any move Brewer makes has involved advice from her inner circle and she listens to them. And she should, they have taken her way further than ever was imaginable when she started off in the legislature. What is one defining focus among all these critical advisors, but, again, notably Coughlin? The Arizona business community. Always. And the advisors, too, remember the 1070 strife and have seen the trend and movement in the country and courts on LGBT rights. Coughlin et. al are the definition of conservative, but they are not stupid.

3) The Arizona business community was hoping they never had to get to this point, but once SB-1062 was passed, there was simply no question but that they would lobby hard against signature by the Governor. It was far from just me who realized this, so too did one of the best local political reporters, Brahm Resnik. So too did long time Republican PR and political specialist Barrett Marson:

Just a few hours after passage of #SB1062, can there be any doubt that @GovBrewer will veto it? Biz groups en masse coming out against.

And boy have they. As a native here, it has actually been pretty refreshing to see big business step up on this one as they have. The Arizona Chamber of Commerce, Phoenix Chamber of Commerce, Southern Arizona Leadership Council, Intel, Apple, JPMorgan Chase, GoDaddy Group, Delta Air Lines, American Airlines, Marriott Hotels, all major newspapers and a plethora of others started stepping up almost immediately on passage

There are other reasons, including the nearly across the spectrum outcry of major Arizona politicians, including both US senators, and even several of the state legislators who originally voted for the pernicious SB-1062. But my original analysis, along with many here in the Copper State, was that veto was inevitable because of the business interest.

Once the issue of “if” there will be a veto was out of the way, the real question became “when”. As described above, the timing of the veto did not even start until presentment to the Governor’s office Monday, and, really, last night when Jan Brewer returned to Phoenix. But now it is time. The damage and unnecessary humiliation from the whackadoodle legislature is already significant. Governor Brewer IS going to veto this thing, and she should do herself, and the state, a serious favor and do so immediately. I started agitating for this before Brewer even returned from Washington DC.

The point was also made this morning by a prominent Democrat in the state senate, Anna Tovar:

Well, we are very optimistic she will veto the bill, but again, every second she doesn’t veto the bill is a black mark on the state of Arizona. We’ve asked the governor as of yesterday to swiftly veto this bill when she arrived yesterday, the second she got off the plane.

Arizona is in the headlines for all the wrong reasons, we want to focus on the priorities of our state.

That is a fact. Republicans are saying it, Democrats are saying it, the business community is saying it, I am saying it. Brewer has until late Saturday night to issue the veto before SB-1062 becomes law. It is widely expected she will do it, at a minimum, before Friday night’s Arizona Chamber of Commerce dinner honoring her, and that is almost certainly correct. But Friday afternoon is not soon enough. Not at all.

It is absolutely in the best interests of both the state of Arizona and Jan Brewer to issue her veto of SB-1062 immediately.

Do it now. Do not wait one more painful and damaging second.

1st Amendment Justice Delayed is Justice Denied for Col. Morris Davis

Bg32jNgCYAApToACol. 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.

US Decries Rule of Law in Afghanistan While Calling for Overruling Afghan Attorney General

Update: Reuters is reporting that the 65 prisoners were released on February 13.

Without a single hint of awareness of the irony involved, the US military yesterday released a statement decrying Afghanistan’s decision calling for the imminent release of 65 prisoners held at the Afghan National Detention Facility at Parwan, stating that the release would be a “major step backward for the rule of law in Afghanistan”. There are 88 prisoners over whom the US and Afghanistan disagree, but so far only 65 are subject to the current release orders (with the release order for 37 of the 65 dating back to January). Recall that an independent commission, headed by Abdul Shakor Dadras, has been reviewing the status of the prisoners handed over from US control. Despite US bleating that Karzai and Dadras are releasing hardened insurgents bent on returning to battle, it is hardly noted that over 100 of the prisoners have been ordered held over for trial and that the US has not disputed the release of hundreds of others (648 out of 760 reviewed as of January) against whom there was no evidence of crimes.

In their rush to transcribe the complaints from the US military, articles by the New York Times and Los Angeles Times quickly brush over the fact that the results of the Dadras board have been reviewed both by the Afghan attorney general’s office and Afghanistan’s National Directorate of Security, which is the main intelligence agency. In fact, the New York Times doesn’t mention the NDS review at all. From the Los Angeles Times article:

Afghan officials issued a sharp rebuttal, saying the attorney general’s office and the National Directorate of Security – Afghanistan’s CIA – had reviewed the U.S. information and found insufficient evidence to continue to hold the prisoners. “According to Afghan laws there is no information gathered about these detainees to prove them guilty, so they were ordered released,” Abdul Shakoor Dadras, head of the Afghan government committee responsible for the prisoner issue, said in an interview Tuesday.

The New York Times has also posted a document (pdf) purporting to lay out the evidence against the 37 disputed prisoners cleared for release in January. Remarkably, although the military is expressing concern for rule of law, there is a strong reliance on failed polygraph tests in the evidence cited. Of course, polygraph results are so unreliable that they are not admissible in most US states, but that doesn’t seem to matter to the military. Fingerprints and other biometric matches are also cited in the document for some prisoners, but whether these matches are strong or weak is not discussed, even though a court would be very interested in the level at which the match is said to occur. Similarly, evidence of explosive residue is cited for some of the prisoners without any discussion of how conclusive the test result was. Laughably, possession of firearms is cited for many of the prisoners, despite the fact that the country in which they live has been at war for over the last twelve years after the US military invaded.

Back in January, Dadras had this to say about some of the evidence:

Mr. Dadras said in an interview on Monday that he was only being true to Afghan law. He insisted that he had to discard any evidence that was collected without a defense lawyer present, which would appear to include anything in the suspect’s possession when captured. He also said he distrusted evidence collected years after suspects were detained, and was not persuaded when lab analysis found residue from chloride chemical compounds used in explosives. Suspects could have picked up the residue other ways, he said.

“The air is contaminated with chlorides, given the fighting; there is bombing and the wind,” Mr. Dadras said.

Returning to the US military statement, they do acknowledge that Afghanistan’s attorney general’s carried out a review of the disputed cases. However, they dismiss that review: Continue reading

Friday News Dump Not Dead Yet: Stephen Kim Guilty Plea

Just when Kevin Drum declared the “Friday News Dump” dead, comes proof news of said death was greatly exaggerated.

As Josh Gerstein and others have reported, the plea will be entered this afternoon:

Under the terms of the agreement, Kim will plead guilty to a single felony count of disclosing classified information to Rosen in June 2009, and serve a 13-month prison sentence. Judge Colleen Kollar-Kotelly would have to accept the sentence or reject it outright?, in which case Kim could withdraw his plea. Kim would also be on supervised release for a year, but would pay no fine.

Judge Kollar-Kotelly is expected to accept the guilty plea at today’s hearing, but will not impose a sentence until sometime later.

Well, that is kind of a big deal dropped out of nowhere on a Friday afternoon.

As you may recall, this is the infamous case where the Obama/Holder DOJ was caught classifying a journalist, James Rosen of Fox News, as an “aider and abettor” of espionage. As the Washington Post reported, the scurrilous allegation was clear as day in a formal warrant application filed as an official court document:

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.

[snip]

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

Of course, the fully justifiable uproar over the Rosen treatment by DOJ eventually led to “new guidelines”, being issued by the DOJ. The new guidelines are certainly a half step in the right direction, but wholly unsatisfactory for the breadth and scope of the current Administration’s attack on the American free press.

But now the case undergirding the discussion in the Stephen Kim case will be shut down, and the questions that could play out in an actual trial quashed. All nice and tidy!

Frankly, I have mixed emotions about the reported Kim plea itself. It is, all in all, a pretty good deal for Kim and his attorney, the great Abbe Lowell. The case is done, bad precedent does not get etched into a jury verdict and appeal, and the nightmare has an end in sight for the defendant, Stephen Kim. All things considered, given the seriousness of the espionage and false statement charges in the indictment, 13 months is a good outcome. And it is not a horrible sentence to have as a yardstick for other leakers (were I Ed Snowden and Ben Wizner, I would like this result). By the same token, the damage done by the ridiculous antics and conduct of the DOJ in getting to this point is palpable. It will leave a stain that won’t, and shouldn’t, go away.

That still leaves the matter of Jeffrey Sterling, and reporter James Risen, though. Whither DOJ on that? And it is an important question since the much ballyhooed and vaunted “New Media Policies” announced by DOJ left wide open the ability to force Risen (and others that may some day be similarly situated) to testify about his sources of face jail for contempt.

Judge Lamberth Takes DOJ to Woodshed; DOJ Moves Peas Under Different Pods

CryingJusticeThere was an interesting, albeit little noticed, order issued about ten days ago in the somewhat below the radar case of Royer v. Federal Bureau of Prisons. Royer is a federal inmate who has served about half of his 20 year sentence who in 2010 started bringing a mandamus action complaining that he was improperly classified as a “terrorist inmate” causing him to be wrongfully placed in Communication Management Unit (CMU) detention. The case has meandered along ever since.

Frankly, beyond that, the root case facts are not important to the January 15, 2014 Memorandum and Order issued by Judge Royce Lamberth in the case. Instead, Lamberth focused, like a white hot laser, on misconduct, obstreperousness and sheer incompetence on the part of the United States Department of Justice (DOJ) who represents the Defendant BOP in the case.

Here are some samples straight off of Royce Lamberth’s pen:

Plaintiff’s discovery requests were served on June 19, 2013. Defendant failed to respond on July 19, 2013, as required, nor did defendant file a motion for extension of time. Defendant’s first error, therefore, was egregious—arrogating to itself when it would respond to outstanding discovery.

and

Defendant’s fourth error was on August 5, 2013, when it filed its responses to interrogatories and produced a few additional documents. The answers to interrogatories contained no signature under oath, with untimely objections signed by counsel. Even novices to litigation know that answers to interrogatories must be signed under oath. Any attorney who practices before this Court should know that this Court does not tolerate discovery responses being filed on a “rolling” basis

Lamberth then goes on to grant the inmate plaintiff pretty much all his discovery motion and hammers the DOJ by telling plaintiff to submit its request for sanctions in the form of award of Continue reading

Glass Shattered: California Supreme Court Denies Stephen Glass Law License

The decision is in, and the California Supreme Court has made their decision to refuse to grant Stephen Glass a law license in the State of California.

We conclude that on this record he has not sustained his heavy burden of demonstrating rehabilitation and fitness for the practice of law.

The full opinion is here.

Ironically, the California Bar’s initial hearing officer, the entity that actually deals with line level lawyers and their practice on a day to day basis in California, found Glass had demonstrated reform and good character so as to be fit for practice. The The State Bar Court Review Department independently reviewed the record and agreed with the initial finding of character fitness for practice. Instead, it was the more insulated elitists in the Bar Committee, and ultimately in the California Supreme Court, who thought otherwise.

Glass’s conduct as a journalist exhibited moral turpitude sustained over an extended period. As the Review Department dissent emphasized, he engaged in “fraud of staggering‟ proportions” and he “use[d] . . . his exceptional writing skills to publicly and falsely malign people and organizations for actions they did not do and faults they did not have.” As the dissent further commented, for two years he “engaged in a multi-layered, complex, and harmful course of public dishonesty.” Glass’s journalistic dishonesty was not a single lapse of judgment, which we have sometimes excused, but involved significant deceit sustained unremittingly for a period of years. (See Hall v. Committee of Bar Examiners (1979) 25 Cal.3d 730, 742 [applications may be rejected in cases of “numerous fraudulent acts” and “false statements”].) Glass’s deceit also was motivated by professional ambition, betrayed a vicious, mean spirit and a complete lack of compassion for others, along with arrogance and prejudice against various ethnic groups. In all these respects, his misconduct bore directly on his character in matters that are critical to the practice of law.

and

Glass’s misconduct was also reprehensible because it took place while he was pursuing a law degree and license to practice law, when the importance of honesty should have gained new meaning and significance for him.

Moreover, Glass’s lack of integrity and forthrightness continued beyond the time he was engaged in journalism. Once he was exposed, Glass‟s response was to protect himself, not to freely and fully admit and catalogue all of his fabrications. He never fully cooperated with his employers to clarify the record, failed to carefully review the editorials they published to describe the fabrications to their readership, made misrepresentations to The New Republic regarding some of his work during the period he purported to be cooperating with that magazine, and indeed some of his fabrications did not come to light until the California State Bar proceedings. He refused to speak to his editor at George magazine when the latter called to ask for help in identifying fabrications in the articles Glass wrote for that magazine.

The decision goes on to hammer Glass about as hard as could be imagined in every aspect of his prior conduct, rehabilitation and application for bar membership. The decision is every bit as venomous and scathing as the oral argument was (further discussed below).

Back in August of last year, I wrote about the attempt of failed, story inventing journalist Stephen Glass’ attempt to gain his license to practice law in the State of California. I drew a comparison between the beyond commendable success Shon Hopwood has found in gaining an exclusive Continue reading

9th Circuit Extends Equal Protection (and Batson) to Sexual Identity

In yet another win for equality, and equal protection, on issues involving sexual orientation and identity, the Ninth Circuit has issued an important opinion holding Batson v. Kentucky protections apply to sexual orientation issues in jury selection.

The case is Smithkline Beecham Corp, dba GSK v. Abbott Laboroatories, and the decision is here.

This case evolved out of a licensing dispute between two pharmaceutical makers of HIV medications. GSK contended Abbott violated antitrust laws, dealt in bad faith and otherwise engaged in unfair trade practices by licensing to GSK the authority to market an Abbott HIV drug in conjunction with one of its own and then increasing the price of the Abbott drug fourfold, so as to drive business to Abbott’s own combination drug.

Judge Steve Reinhardt set the table:

During jury selection, Abbott used its first peremptory strike against the only self-identified gay member of the venire. GSK challenged the strike under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that it was impermissibly made on the basis of sexual orientation. The district judge denied the challenge.

This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.

The fact the court unanimously found that heightened scrutiny applies is critical. Finding heightened scrutiny controlling on sexual preference issues has been the holy grail for a long time, and exactly what the Supreme Court ducked in Windsor (mostly) and Perry (completely through avoidance).

The Batson challenge was effectively uncontroverted materially by Abbot, and the court found exactly that. The far more important discussion, however, comes in the analysis of whether the violation by Abbott violated the Equal Protection Clause. This is a necessary question because, while the Supreme Court in J.E.B. v. Alabama extended Batson protections to gender, and Continue reading

A Remembrance of Judge John Roll

200px-Chief_Judge_John_RollIt 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.

52ac00b293652.imageI 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.

The Disturbingly Hollow Message of the Alan Turing Pardon

Famed World War II code breaker, and computer pioneer, Alan Turing has been pardoned by the British government. From the New York Times story:

Nearly 60 years after his death, Alan Turing, the British mathematician regarded as one of the central figures in the development of the computer, received a formal pardon from Queen Elizabeth II on Monday for his conviction in 1952 on charges of homosexuality, at the time a criminal offense in Britain.
….
The British prime minister, David Cameron, said in a statement: “His action saved countless lives. He also left a remarkable national legacy through his substantial scientific achievements, often being referred to as the ‘father of modern computing.’ ”

Mr. Turing committed suicide in 1954, two years after his conviction on charges of gross indecency.
….
When Mr. Turing was convicted in 1952, he was sentenced — as an alternative to prison — to chemical castration by a series of injections of female hormones. He also lost his security clearance because of the conviction. He committed suicide by eating an apple believed to have been laced with cyanide.

That is about as nice, concise and antiseptic a take as can be had on the matter. The truth, and scathing comment on society therein, is quite a bit darker and uglier.

As Alice Bell put it in the Guardian:

That Turing’s work helped win the war, and that it has had such a large social and economic impact beyond that, makes his treatment by the state especially embarrassing. But his life and his homosexuality are no more meaningful just because he was a genius we (perhaps despite ourselves) managed to benefit from. To use his work in computer science as a basis for this pardon seems to trivialise both the huge contribution of that work and, perhaps more importantly, the history of gay rights.

Right. But it is even darker than the common story of privilege and celebrity gaining advantage. That the pardon came nearly sixty years after Turing’s death in forced shame (whether by suicide or not), makes the pardon act almost sad and meaningless. It does nothing for Turing, at this point it is mostly a cute and happy Christmas feel good move for the British throne and government. The hollowness of the move at this point saps much of the joy.

The criminal charge Turing was convicted of was section 11 of the Criminal Law Amendment Act 1885. Turing was hardly an isolated case; we hear now about him only because of his celebrity. As David Allen Green relates, there were a LOT of others:

In practice, if the police obtained sufficient evidence they would normally prosecute, and the courts would then usually convict. In all there were an estimated 75,000 convictions under section 11 (and its successor offence in the Sexual Offences Act 1956). One of these convictions was of Oscar Wilde, who was sentenced in 1895 to two years’ hard labour (the “severest sentence that the law allows” remarked the judge). But, perhaps counter-intuitively, most of these prosecutions did not happen in the days of Victorian prudery, but in the two to three decades after 1931.

One of these prosecutions was to be of Turing.

And the pardon was not just meaningless to Turing because he was dead the date, lo some 59 years later, when it was issued, it was meaningless too because if Turing were still alive, the equivalent would had already been available by act of law. As David Allen Green further relates:

A recent statute – the Protection of Freedoms Act 2012 – provides a scheme where those who had been convicted of the section 11 offence (and similar offences) can apply for their entire criminal records to be removed if the facts of the case would no longer count as a crime. It would be as if the offence had not been committed at all. These are not pardons – they go much further: the 2012 scheme removes the taint of criminality altogether, and with no fussing about not affecting the conviction or the sentence.

But the 2012 scheme is only for those still alive.

Lastly, Green goes back to the “why only Turing” bit that ought to gnaw at all who celebrate the pardon today:

Turing’s conviction was just one of about 75,000 under a vindictive law. But here is no logical reason why his should be regarded as a unique case. The actual wrong done to Turing was also one done to many thousands of men, and so any righting of that wrong must apply to those men too.

If Alan Turing is to be pardoned then so should all men convicted under section 11 if the facts of their cases would not be a crime today. But a better posthumous gesture would be to simply extend the 2012 scheme to all those who are now dead. Removing the criminal records completely of all those prosecuted who would not be prosecuted today on the same facts would be a better legislative gesture than a single statutory pardon, if there is to be a legislative gesture at all.

Precisely. If you want to honor Turing, make right not just by him, but all those similarly situated. And there are a lot of such men in history. This supposedly benevolent act of the Queen and British government rings hollow and self serving, there is much more than one heroic man to atone for.

Lastly, I urge a full read of David Allen Green’s piece in the New Statesman. It is long and detailed, but truly tells the full tale that ought be told regarding the atrocious history of Alan Turing’s offense, conviction then, and disturbingly hollow pardon now. And, the beauty of it is, Green penned his piece over six months ago, long before today’s pardon came down.

The Civil Liberties Celebration Hangover Wears Off

JusticePicAt the end of last week, I joked a little about privacy and civil liberties advocates having had the “best week ever”. It was indeed a very good week, but only relatively compared to the near constant assault on the same by the government. But the con is being put back in ICon by the Administration and its mouthpieces.

As I noted in the same post, Obama himself has already thrown cold water on the promise of his NSA Review Board report. Contrary to some, I saw quite a few positives in the report and thought it much stronger than I ever expected. Still, that certainly does not mean it was, or is, the particularly strong reform that is needed. And even the measures and discussion it did contain are worthless without sincerity and dedication to buy into them by the intelligence community and the administration. But if Obama on Friday was the harbinger of the walkback and whitewash of real reform, the foot soldiers are taking the field now to prove the point.

Sunday morning brought out former CIA Deputy Director Michael Morrell on CBS Face the Nation to say this:

I think that is a perception that’s somehow out there. It is not focused on any single American. It is not reading the content of your phone calls or my phone calls or anybody else’s phone calls. It is focused on this metadata for one purpose only and that is to make sure that foreign terrorists aren’t in contact with anybody in the United States.

Morrell also stated that there was “no abuse” by the NSA and that Ed Snowden was a “criminal” who has shirked his duties as a “patriot” by running. Now Mike Morrell is not just some voice out in the intelligence community, he was one of the supposedly hallowed voices that Barack Obama chose to consider “reform”.

Which ought to tell you quite a bit about what Barack Obama really thinks about true reform and your privacy interests. Not much. In fact, Morrell suggested (and Obama almost certainly agrees) that the collection dragnet should be expanded from telephony to also include email. Not exactly the kind of “reform” we had in mind.

Then, Sunday night 60 Minutes showed that fluffing the security state is not just a vice, but an ingrained habit for them. Hot on the heels of their John Miller blowjob on the NSA, last night 60 Minutes opened with a completely hagiographic puff piece on and with National Security Advisor Susan Rice. There was absolutely no news whatsoever in the segment, it was entirely a forum for Rice and her “interviewer”, Lesley Stahl, to spew unsupported allegations about Edward Snowden (He “has 1.5 million documents!”), lie about how the DOJ has interacted with the court system regarding the government surveillance programs (the only false statements have been “inadvertent”) and rehab her image from the Benghazi!! debacle. That was really it. Not exactly the hard hitting journalism you would hope for on the heels of a federal judge declaring a piece of the heart of the surveillance state unconstitutional.

Oh, yes, Susan Rice also proudly proclaimed herself “a pragmatist like Henry Kissinger which, as Tim Shorrock correctly pointed out, is not exactly reassuring from the administration of a Democratic President interested in civil liberties, privacy and the rule of law.

So, the whitewashing of surveillance dragnet reform is in full swing, let the giddiness of last week give way to the understanding that Barack Obama, and the Intelligence Community, have no intention whatsoever of “reforming”. In fact, they will use the illusion of “reform” to expand their authorities and power. Jonathan Turley noted:

Obama stacked the task force on NSA surveillance with hawks to guarantee the preservation of the program.

Not just preserve, but to give the false, nee fraudulent, patina of Obama Administration concern for the privacy and civil liberties concerns of the American citizenry when, in fact, the Administration has none. It is yet another con.

Or, as Glenn Greenwald noted:

The key to the WH panel: its stated purpose was to re-establish public confidence in NSA – NOT reform it.

There may be some moving of the pea beneath the shells, but there will be no meaningful reform from the administration of Barack Obama. The vehicle for reform, if there is to be one at all, will have to come from the Article III federal courts. for an overview of the path of Judge Leon’s decision in Klayman through the DC circuit, see this piece by NLJ’s Zoe Tillman.

Lastly, to give just a little hope after the above distressing content, I recommend a read of this excellent article by Adam Serwer at MSNBC on the cagy pump priming for surveillance reform Justice Sotomayor has done at the Supreme Court:

If Edward Snowden gave federal courts the means to declare the National Security Agency’s data-gathering unconstitutional, Sonia Sotomayor showed them how.

It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Give the entire article a read, Adam is spot on. If there is to be reform on the surveillance dragnet, it will almost certainly have to be the handiwork of the courts, and Justice Sotomayor planted the seed. The constant barrage of truth and facts coming from the Snowden materials, what Jay Rosen rightfully terms “The Snowden Effect” is providing the food for Sotomayor’s seed to flower. Hopefully.

Emptywheel Twitterverse
bmaz Good for the UofA Wildcats. Nice win to open the season. Of course that will NOT be happening at end of November the Sun Devils come to town
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bmaz @ThePietzLawFirm @steveglista @GregoryMcNeal @NYDailyNews If you have evidence Laird did not shoot the pier, please post it.
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bmaz @ThePietzLawFirm @steveglista @GregoryMcNeal @NYDailyNews Several other news orbs I saw did the same; I picked that only because of video.
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emptywheel @steveglista I do. Mr EW wants to go too. What time will you be up? @grmakerfaire
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emptywheel RT @ddayen: My story on CA unions killing campaign finance disclosure, from @Salon this week: http://t.co/HQ38zZLvVm
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JimWhiteGNV Roll Tide! RT @NaphiSoc: and the NRA Parents of the Year AWARD goes to..... #UniteBlue http://t.co/01vqJUsEZd
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emptywheel @chinahand Why didn't Argentina think of that? Oh wait. Only likely invader was the UK.
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emptywheel RT @chinahand: Seems Kyiv cannily assuming levels of indebtedness that wl compel West 2 support it unconditionally as its financial ward.
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emptywheel RT @barryeisler: Is there one for the US? RT @BrilliantMaps: The 22 countries the UK has not invaded http://t.co/7eCxQ2ZfSA
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emptywheel @Mario_Greenly My point is simple. A commander who claims not to have checked seized devices in 8 mos is lying. Very simple @dr_davidson
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emptywheel @Mario_Greenly Calling the laptop obviously dubious. Not doubting @HaraldDoornbos @jenanmoussa reported what they were told. @dr_davidson
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emptywheel @dr_davidson Times like this you look for the way to monetize such predictions. http://t.co/ukhGIUZESv
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