The Blue State

Part of Patriot Act struck down

For some time, many have alleged that the Patriot Act violated the 1996 Telecommunications Act, which prevents phone companies from handing out personal information.  This week, a judge struck down that part of the Patriot Act:

A federal judge yesterday struck down the parts of the recently revised USA Patriot Act that authorized the Federal Bureau of Investigation  to use informal secret demands called national security letters to compel companies to provide customer records.

The law allowed the F.B.I. not only to force communications companies,including telephone and Internet providers, to turn over the recordswithout court authorization, but also to forbid the companies to tellthe customers or anyone else what they had done. Under the law, enactedlast year, the ability of the courts to review challenges to the ban ondisclosures was quite limited.

Last year, the USA Today reports that three phone companies illegally gave out information on their customers to the government.  USA Today:

The National Security Agency has been secretly collecting the phonecall records of tens of millions of Americans, using data provided byAT&T, Verizon and BellSouth, people with direct knowledge of thearrangement told USA TODAY.

With this Administration, no law is considered precedent unless it was made by them.

Schumer: Democrats will not confirm another Bush Supreme Court nominee

If you try brainstorming some of the reasons why a John Kerry presidency would have been good for our country, one item around the top of the list should be the judiciary.  Had Kerry won Ohio, the Supreme Court would be two seats more progressive.  A number of 5-4 court rulings within the last year, including the one on abortion, would have gone the other way.

In an effort to prevent the court from going even more to the right, Senator Chuck Schumer (D-NY) is putting his food down:

New York Sen. Charles E. Schumer, a powerful member of the Democraticleadership, said Friday the Senate should not confirm another U.S.Supreme Court nominee under President Bush “except in extraordinarycircumstances.”

“We should reverse the presumption of confirmation,” Schumer told theAmerican Constitution Society convention in Washington. “The SupremeCourt is dangerously out of balance. We cannot afford to see JusticeStevens replaced by another Roberts, or Justice Ginsburg by anotherAlito.”

Because after all, why should Schumer or any other Democratic Senator be afraid of a President with 25% approval?

Conservative judge to Bush: "We still have to preserve our civil liberties"

A federal judge appointed two decades ago under Reagan completely tore apart the Bush Administration's warrantless wiretap policy.  During a speech on Saturday at the American Library Association's convention, Royce Lamberth, a district court judge in Washington D.C., reminded the President that he does not have unlimited power:

"But what we have found in the history of ourcountry is that you can't trust the executive," he said at the AmericanLibrary Association's convention.

"We have to understand you can fight the war (onterrorism) and lose everything if you have no civil liberties left whenyou get through fighting the war," said Lamberth, who was appointed byPresident Reagan.

The judge disagreed with letting the executive branch alone decide which people to spy on in national security cases.

"The executive has to fight and win the war atall costs. But judges understand the war has to be fought, but it can'tbe at all costs," Lamberth said. "We still have to preserve our civilliberties. Judges are the kinds of people you want to entrust that kindof judgment to more than the executive."

For the third time, just in case you didn't read it, this was a Reagan appointee.  Former Supreme Court Justice Sandra Day O'Connor, routinely smeared on Fox News, was also a Reagan appointee.  Justice Kennedy, yet another Reagan appointee, was attacked by the right for being the decisive vote that will soon change the EPA's careless policy on carbon emissions.

Also, all nine of the US Attorneys that were fired were appointed by a Republican president.

In other words, it is not a matter of this Administration being 'liberal' or 'conservative'.  All they want is to consolidate power -- that's it.  Their policies lack any kind of academic political philosophy.  It's just about using power as a means to get more power.  Usually leaders use power to promote what they consider to be good and just.  This Executive obtains power for the sake of getting more power.  What we get in return is a failed government.

Major Supreme Court victory on greenhouse gas emissions

Today, in a 5-4 decision, the Supreme Court delivered a blow to the Bush Administration's policy on greenhouse gas emissions.  The court ruled that the Environmental Protection Agency "has offered no reasonedexplanation" for its unwillingness to regulate carbon emissions from cars, and that the agency can regulate them:

The Supreme Court ordered the federal government on Monday to take afresh look at regulating carbon dioxide emissions from cars, a rebuketo Bush administration policy on global warming.

In a 5-4 decision, the court said the Clean Air Act gives theEnvironmental Protection Agency the authority to regulate the emissionsof carbon dioxide and other greenhouse gases from cars.

This is a historic ruling by the Supreme Court.  This court battle began under Clinton.  The Clinton Administration filed a lawsuit against Duke Energy Corp in an effort to force utilities to enact pollution control, especially pertaining to coal power plants.  Today, the  justices overturned a ruling by the 4th Circuit Court of Appeals in Virginia -- saying that the lower court over-stepped its authority by not recognizing Environmental Protection Agency regulations of 1980.

In a nutshell, since the very beginning of the Bush years back in 2001, the Administration's excuse for not reducing greenhouse emissions was that they lacked the power to do so -- which is hypocritical when you take into account how Executive power has expanded in other areas.  Justice John Paul Stevens, who wrote for the majority, said the Administration's reasoning was "arbitrary, capricious or otherwise not in accordance withlaw."

I bet you can guess which which justices dissented from the majority:

• Chief Justice John Roberts
• Samuel Alito
• Clarence Thomas
• Antonin Scalia

I am going to write much more about this today and tomorrow, and give you a glimpse at what this really means for the future of environmental law.

Guilty at Guantanamo

David Hicks of Australia told a judge he aided a terrorist group, reports the Los Angeles Times. 

My curiosity (and main reason for posting this) is to ask the question:  Is this good for the Bush administration (as the article boasts) or will the confession provide more complications to the detainment and coercion processes at Guantanamo?  To their [LAT's] credit, the article touches the surface of both perspectives.

Australian David Hicks pleaded guilty Monday to material support of terrorism, securing a symbolic victory for the Bush administration in the first war-crimes trial since World War II.

So first we're hearing this is a "slam dunk," a symbolic victory.  Depending on their bias, one could ask why this important line comes as the first sentence in the story then trails off with little evidence to support the confession as a clear victory.  Later, after many readers likely stop reading, some details are divulged:

Hicks changed his mind about entering a plea after more than four hours of pre-trial procedures in which his primary defense attorney, Marine Maj. Michael Mori, failed to persuade Kohlmann that he needed more time to prepare.

Mori was left alone at the defense table with the defendant when civilian criminal defense lawyer Joshua Dratel was barred from participating because he refused to promise to adhere to procedural rules that have yet to be defined.

"I can't sign a document that provides a blank check on my ethical obligations," Dratel told Kohlmann, saying his obligation was to his client, not to the military process. "You can't make it an all-or-nothing proposition."

Kohlmann also declined to approve a second civilian lawyer, Rebecca Snyder, on the grounds that commission rules allow civilians only if their representation incurs no expense to the U.S. government. Snyder is a Pentagon employee.

And more about Hicks' distrust of those overseeing the procedures:

Terry Hicks, the defendant's father, said his son told him during an emotional reunion in a court anteroom in the morning that he didn't trust the U.S. military forum to live up to a pledge by the Bush administration to transfer Hicks to Australian custody at the end of the proceedings.

"Will they allow him to go home?" the elder Hicks asked with deep skepticism. "They've held him for five years. Who would you trust who held you for five years?"

Full article is here.

DoJ's reason for firing prosecutor is now completely debunked

David Iglesias, recently fired by the Justice Department for allegedly not doing enough to prosecute voter fraud, was actually commended in 2005 for his work in prosecuting voter fraud:

One of the U.S. attorneys fired by the Bush administration afterRepublican complaints that he neglected to prosecute voter fraud hadbeen heralded for his expertise in that area by the Justice Department,which twice selected him to train other federal prosecutors to pursueelection crimes.

David C. Iglesias, who was dismissed as U.S.attorney for New Mexico in December, was one of two chief federalprosecutors invited to teach at a "voting integrity symposium" inOctober 2005. The symposium was sponsored by Justice's public integrityand civil rights sections and was attended by more than 100 prosecutorsfrom around the country, according to an account by Iglesias that adepartment spokesman confirmed.

This makes Gonzales look not so intelligent.  Why would he use that reasoning for firing Iglesias if there was such a high probability that this story was going to eventually come out.  That is a perfect example of political clumsiness.  Or did Gonzales honestly think that no newspaper would ever catch on to the fact that Iglesias was commended in that area by his Justice Department?

Gonzales is making it easy for Democrats.  And for that reason, Patrick Leahy, Chairman of the Senate Judiciary Committee, will have an easier time trying to get other people like Karl Rove to testify.

The mother of all court battles -- Viacom v. Youtube

It is highly probable that this one will eventually end up in the Supreme Court.  For people that get their news online, this will decide a lot.  The case is Viacom v. Youtube -- regarding the right for Youtube users to publish taped television excerpts on the internet.  Google, which now owns Youtube, is getting ready for the big fight.  The court battle will begin in 30 days:

Viacom is suing Google and its video-sharing platform YouTube for "massive intentional copyright infringement" of Viacom's entertainment properties.

The suit, filed in the U.S. District Court for the Southern District of New York, seeks more than $1 billion in damages, as well as an injunction prohibiting Google and YouTube from further copyright infringement, Viacom said in a statement.

According to a copy of the suit, the Viacom contends that Google has intentionally avoided taking "proactive steps" to prevent viewers from accessing almost 160,000 Viacom clips on YouTube. Viacom said YouTube users have viewed illegal copies of Viacom programming over 1.5 billion times.

"YouTube is a significant, for-profit organization that has built a lucrative business out of exploiting the devotion of fans to others' creative works in order to enrich itself and its corporate parent Google. Therefore, we must turn to the courts," Viacom said.

According to a Google spokesperson, the company has not received the lawsuit. However, the spokesperson added, the company is confident that YouTube has respected the legal rights of copyright holders and believes the courts will agree. Google has 30 days to respond in court.

This all sounds very familiar.  It looks like someone predicted Google would get sued for copyright infringement.  Great call, EPIC!

Why Bush would fire his own prosecutors

Under Bill Clinton, like under our current president, there were a wave of federal prosecutor firings.  But as McClatchy notes, presidents who replace attorneys do so at the beginning of their first term in the White House.  Today, Bush is firing prosecutors in the middle of his second term, which is highly unusual:

Mass firings of U.S. attorneys are fairly common when a new president takes office, but not in a second-term administration. Prosecutors are usually appointed for four-year terms, but they are usually allowed to stay on the job if the president who appointed them is re-elected.

 

Even as they planned mass firings by the Bush White House, Justice Department officials acknowledged it would be unusual for the president to oust his own appointees.

Why would Bush fire his own appointees?  It is the same logic behind why the Republican base despised Sandra Day O'Connor this decade, and why many of the judges Bush accused of judicial activism were actually appointed by his father.  Putting it simply, these prosecutors were conservative, but not partisan enough.  The difference between Bush's father and our current president is that Bush Sr. sought prosecutors with a certain judicial philosophy.  Bush Jr. sought prosecutors with a certain partisan loyalty.

NYT: White House actions led to firing of eight prosecutors

What is stopping Democrats from subpoenaing the following Administration officials?

• Karl Rove
• Harriet Miers
• Alberto Gonzales

All of them played a role in the sudden firing of eight federal prosecutors, according to this morning's New York Times:

Last October, President Bush spoke with Attorney General Alberto Gonzales to pass along concerns by Republicans  that some prosecutors were not aggressively addressing voter fraud, the White House said Monday. Senator Pete V. Domenici,Republican of New Mexico, was among the politicians who complaineddirectly to the president, according to an administration official.

...  In early 2005, Harriet E. Miers ,then the White House legal counsel, asked a Justice Department officialwhether it would be feasible to replace all United States attorneyswhen their four-year terms expired, according to the Justice Department.

The story this morning follows the White House's admission yesterday that Karl Rove was involved as well.

This is outrageous.  Why?  The careers of eight federal prosecutors were ruined simply because they were not partisan enough for the Bush Administration -- even though at least six of the eight prosecutors received positive performance ratings.

It is unprecedented.  Think what would have happened if President Johnson had pulled this same stunt on U.S. Attorney Jim Garrison.  Mr. Garrison took Clay Shaw to trial for his involvement in the JFK assassination.

So what's the point?

Federal prosecutors are important because they are supposed to be independent of the Oval Office.  And at times, like in the case of Jim Garrison, they are even allowed to oppose a sitting president.

Prosecutor McKay explains why he may have been fired

Imagine if your supervisor said this about your job performance:

"An effective, well-regarded and capable leader ... (who) establishedstrategic goals that were appropriate to meet the priorities of thedepartment."

You'd probably think that you were in line for a promotion -- am I wrong?

U.S. Attorney John McKay was given this positive performance rating just one year before he was forced to resign fired by the Justice Department.  McKay thinks there were some sour feelings over the fact that he chose not to investigate the 2004 gubernatorial election in the state of Washington, which Democrats won by about 50 votes.  Republicans pressured McKay to investigate the matter, and were pissed when he chose not to:

John McKay of Seattle, said he received acall in late 2004 he considered disconcerting from Ed Cassidy, a formerchief of staff to Representative Doc Hastings, a Republican ofWashington.

At the time, Mr. McKay was weighing whether toconvene a grand jury to investigate allegations of voter fraud in aclose gubernatorial election won by a Democrat, a course he ultimatelydid not pursue. He said Mr. Cassidy called to inquire about the statusof the investigation.

Mr. McKay said he cut off the conversation,telling Mr. Cassidy that he was certain he would not want to ask aboutconfidential prosecution matters. The former prosecutor said at thehearing, “I was concerned and disconcerted by the call.”

AfterMr. McKay’s testimony Mr. Hastings said in statement that the call wasappropriate. “It was a simple inquiry and nothing more — and it was theonly call to any federal official from my office on this subject eitherduring or after the recount ordeal,” Mr. Hastings said.

Coincidence that McKay was canned two years after the refused to help the Republicans overturn the 2004 gubernatorial election in Washington?  Or does it follow along the same line of the other prosecutors, many of which were fired at the request of lawmakers.