Saturday, June 28, 2008

Furniture shopping

Last year, we bought new sofas, because our old one and our recliner were pretty much dead to the world; the cats had scratched them all to hell, the kids had written, spilled food and drink on them, and they just did not hold up well to the rigors of being the the Binjo Ditch.

So we got new sofas 6 months ago. And the cats have scratched up the side of one of them. I hate our cats. But I digress.

We went to the Dump for our furniture. I would say that the Dump was pretty good. The sales staff was a little more sharkish than I like - when I say I'm not interested in buying, that means I don't want you to keep haranguing me; you let me shop, and when I am ready to talk, I will seek you out. But the prices were really good. We liked the quality, and the furniture has held up well to the kids, though the damn cat scratched up the back of the one; stupid damn cat. But I digress.

We're currently shopping for a bed for the Princess and a futon for the gameroom. We are probably going to find our way to the Dump tomorrow to see what they might have to offer. We actually went to the Room Store today and saw the same sofa combo that we bought last Christmas for about $300-400 more than what we paid. The service after purchase was excellent, too. We were happy with the sales staff and the delivery.

Anyway, that's what's going on at the Bingo Ditch today. Time for some sleep.

Friday, June 27, 2008

Advice for the July 2008 Bar Examinees

It's almost July; the exam is coming up in about a month. Some of y'all may be getting stressed, particularly about practice exam/simulated MBE scores. First off - the simulated MBE is to give you an idea of what the exam is like and to kind of remind you that this is coming up. Keep studying your rules of law, and you will be fine.

Remember, the exam is there to test how well you can spot issues, state the rule and apply it (this is your IRAC in action). You have to be able to keep your thoughts organized - take your time and let the answer come out. Don't panic. So long as you've studied, you should be fine. The exam is designed to be difficult, but passable. The idea is that you need to put in the effort to prepare for it. Remember that, and remember that you already learned most of this in law school and you're just refreshing your mind while studying for the bar, and you should be fine. You still need to actually study, though. That part is tough to pass by...

I can't tell anyone "how" to study for the bar exam. Everybody learns their own way. I can tell you what worked for me, if that gives you a launching point for your own preparation after BarBri ends.

Photog and I studied together. We went to BarBri together, then went to the school and studied together. One thing that helped us was that we were able to find a room where we could speak to each other without worrying about disturbing others. This way, we could go over practice questions and exams and discuss the answers to reinforce what we were learning. We actually chose the International Law Society office at STCL because we knew we would be able to study and still have things to take the focus off our stress.

We would start the day by doing about 30-50 multiple choice questions, either from the Barbri software or questions from other exam sources. We would read 10 questions, we would both come up with answers individually, then we'd share our answer. If the answers did not match, then we would "sell" our answer to the other before we checked the answer (on the software we usually did this one question at a time). After we checked our answer, we made sure we understood the reasoning for the answer, particularly if we got it wrong, or if we got it right but only because we guessed the correct letter. Attention to detail counts here. Read each word in the question and answer. Then we'd take lunch.

After the MC questions, we would start on the essays (should be the yellow book). Again, we'd read a question, come up with an answer, explain the rule of law, and support our position. For these, we usually were pretty close with our answers, but our reasoning might differ slightly, except in the situations where we simply had no idea about the topic of the question (this will happen - make sure you make note of it and keep going - don't get bogged down). We would do this for 3-5 hours, usually getting through 3-6 essays (don't worry about speed, which will come, worry about getting the rules down). Then it was time for coffee and coca-cola breaks.

Then, depending on our energy level, we would consider going over the Procedure and Evidence questions - you want to do these a couple times, just to make sure you're comfortable with the questions - there's a limited number of questions that they can ask, so you should have little trouble getting these in your head.

One of the things that we had to do was keep something around to occupy ourselves - we had toy swords and a Nerf ball that we would bat around, and a yardstick we would balance from time to time. I find that I need to keep active while I'm studying, it helps me focus. This is certainly not for everyone and if you are studying with anyone, make sure that your study partner is of similar activity requirement.

Finally, keep your sense of humor, don't get discouraged - you know the information, you just need to practice getting it out. Like I said before - the exam is there to challenge you, not to try to fail you. If you ever need any bad jokes to ease the stress, I may know one or two.

So, we're homeowners

We closed today. The process was rather painless. The 2 1/2 hours of work, though, were not. I'm pretty sure every angry client that we have called today and asked to speak to me. But I digress.

We have a really nice 4, 2 1/2, 2 in a MPC north of here. It's really beautiful, the neighborhood is nice and quiet, and the previous owners took great care of the place - it had been purchased as a foreclosure and they renovated it like mad.

Eventually, once we're all moved in, we'll have a little get-together, perhaps I'll make Bulgoki and even let cat bandit have some. I'd tease her, but she's in the middle of bar prep, and that's a rather stressful period for any law school grad, so instead, I'll wish her good luck.

The Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Supreme Court held yesterday that Washington D.C.'s ban on handguns served as an unconstitutional infringement on the right to keep and bear arms. There are those who laud the decision, thinking it is essential to helping us defend ourselves from our government and/or those who may enter our homes. There are others who think this is absolutely the wrong decision, and that the Framers could have never intended that there would be an absolute ban on regulating firearm ownership.

I think this is the right decision. More on why at a later time.

Wednesday, June 25, 2008

Soon to Come

A recap on the Supreme Court decision overturning capital punishment for child rape.

But not tonight. I'm tired and don't feel up to reading the opinion.

Long story short - I agree with the Court's decision, though I don't know what the opinion is or how they got to it - in other words, I like the outcome, though I can't say whether or not I like the path leading to it.

Yu-Gi-Yoh!

To many children in America, and probably the world, Yu-gi-yoh means a customizable card game and/or a television cartoon showing people playing a customizable card game. However, Yukiyo in Korean translates literally as 6 2 5. This is in reference to June 25, the day the Korean War began. On this day, 58 years ago, North Korean (DPRK) soldiers crossed the 38th Parallel and invaded the South. After 3 years of fighting that saw about 900,000 Chinese, 520,000 North Korean, 400,000 UN and ROK and 155,000 US soldiers killed or wounded, the sides agreed to a cease-fire (not a peace treaty) and remain at war, separated by a small demilitarized zone. Several incursions and soft invasions have occurred since that time, but at no point has the invasion recommenced.

One of my most vivid memories of my time in Korea was when an elderly Korean gentleman stopped me and thanked us (the U.S. soldiers) for helping to keep him and his country free.

Take a moment to think about those who gave their lives answering the call to protect those who could not protect themselves from a real and existing invasion, protecting them from the yoke of tyranny.

Tuesday, June 24, 2008

Stress Level picking up

We've had a busy couple of weeks. We are scheduled to close on Friday, which means one stressor will be past us, immediately replaced by new stressors - namely, buying furniture, moving, setting up daycare, and getting utilities started.

Work is picking up as well. Deadlines don't change, but psychotic (in the literal sense) clients can - they move, they don't answer calls, they leave cryptic messages that nobody can decipher, etc. On top of that, we're inundated with calls right now from clients who are busy asking for attorneys to answer questions that the paralegals are perfectly capable of answering (and have already, in many cases). The problem is, the clients many times don't listen to what anyone says unless the person talking is a lawyer. Even then, in many situations, the clients won't listen, but by that time they've wasted several peoples' time, not just one. But I prattle on.

I hear tell that genetic engineers are working on a Canteloupe/Cauliflower hybrid. They're going to call it a Melon-Cauli.

Monday, June 23, 2008

Presumed Innocent

Let's pretend for a moment that you are a detainee in Guantanamo Bay. Let's also presume that you are not an enemy combatant. Let us further assume that there is no dispute between yourself and the U.S. government that you have never fought against the U.S. government and there is no evidence available that you intended to do so.

Would you feel vindicated simply because your status as an enemy combatant was thrown out at trial? Or would you rather have had the Constitutional protections in place to challenge your detention from the outset?

There are bad people at Guantanamo Bay. There are enemy combatants. There are terrorists who want to attack the United States and her allies. That is not in dispute. What has been in dispute is the mode of classifying individuals as enemy combatants. There are about 270 there now who had been so classified under the CSRTs that were recently declared unconstitutional. Prior to the CSRTs, the number of detainees was over 400. The necessary implication, of course, is that people are not "enemy combatants" simply because the Government said they were; and the CSRTs did go to some degree of protecting them at that end. However, that the protections afforded were insufficient to meet habeas corpus (the right decision, FWIW), the status of the others who DO challenge the validity of their detention is an issue; and that at least one of them has won a victory against his classification, whether it be related to Boumediene or not, shows there is still a LOT of room to go.

I could not imagine being detained indefinitely as an enemy combatant by a nation that conceded it had no evidence of my being or intending to engage in combat against it. Thank goodness I do not live in a nation that does that (in theory).

Rest In Peace

George Carlin passed away. He was 71.

He may be best remembered for his "7 dirty words" performance. I first remember him from Bill and Ted's Excellent Adventure. I also am a fan of his performance on Dogma.

He was a hard working actor, and his humor will be missed.

Saturday, June 21, 2008

I'm not sure you need the context to appreciate the humor of this statement:

"So I said to myself, 'Am I having a heart attack? Nope, it's just a pimple.'"

Wednesday, June 18, 2008

Tag!

It's been a while since I've been hit with a Meme. I can't actually say as I remember the last one that got to me. Therefore, it was a bit of a surprise when Bookworm stopped by and tagged me, though a welcome one. Here are the rules:

1. Link to your tagger and post these rules on your blog.
2. Share 7 facts about yourself on your blog, some random, some weird.
3. Tag 7 people at the end of your post by leaving their names as well as links to their blogs.
4. Let them know they are tagged by leaving a comment on their blog.
5. Present an image of martial discord from whatever period or situation you'd like.

Let's get started:
1. I've gone skiing one time. I'm pretty sure I dislocated my thumb, though I never went to the doctor about it. I spent the day with a giant tear in the crotch of my trousers, and didn't realize until about 30 minutes before we left the park.
2. Technically, I have traveled to or through 26 states. I say technically, because I don't know if you can count Colorado (at the Denver Airport), Nevada (at the Las Vegas airport, though I was there long enough to lose $20), or when I "went" to Maine - we were trying to go to my friend's friend's house for a party in New Hampshire, took a wrong turn, and crossed the bridge into Maine, turned around and went right back.
3. I am a Plaintiff's lawyer by trade, but not necessarily by desire.
4. My wife and I were writing partners in English class in 1987. We didn't know we would end up married at the time.
5. I once thought I killed a cat by driving over it on the way to an ice skating rink with my sister and two of our friends. The laughter from the fact that we didn't feel a bump and therefore thought we dragged the cat on the road was not intentional, but more circumstantial. On the way back home, nobody said anything for about a 2 mile stretch where we were expecting to see cat guts all over the ground. The laughter that came from not seeing anything was huge, and full of relief.
6. Sometimes while in law school, I wondered if I was going to school for the same reason Bernice bobbed her hair. I think I had a different motivation.
7. I am an 8 year veteran of the Air Force.

Now, the image of martial discord, from my trip to New Orleans last year in January, a picture I took in the lower 9th Ward:


For those I tag, I'm going to go with the Family and Alumni +1 approach:
1. One Step Sideways
2. Raise Your Hand If...
3. Jack's Mama
4. Rambling Photos of a Life Lived (who's been rather busy living life, and may not have time for twaddle like this)
5. Red Hot Mamma
6. Cat Bandit
7. Vim and Vinegar

Ahhh, Discovery

One of the problems with denying information is that eventually, the information will come out. Ford had the Pinto memo (a cost-benefit analysis comparing the price of paying wrongful death claims for the Pinto against the cost of fixing the defect). Nixon had the Pentagon Papers.

The current executive branch, or what's left of the leadership from 2002, has its own information - such as the advice of a CIA lawyer advising that "if the detainee dies, you're doing it wrong," or that torture is a "matter of perception."

My understanding, as I was taught during Basic Training, was that if it was torture, we didn't do it. Torture was something "they" did. We were above it. We didn't interrogate outside the accepted practices of international law or try to find loopholes in the Geneva Conventions, because we were better than that. We were the standard bearer, the shining example for the world to follow.

There was no perception. There was no tipping point for right or wrong based on survival rate. But that was before detainees were guilty by suspicion, before civil liberties and the Constitution could be put on hold in the name of "security." Before Bush and company.

I wonder, will any of these individuals go to jail like Lynndie England? Or has the scapegoating already taken place?

Pure Chance

Stories of "what are the odds" always interest me. This one, involving the 1997 Michigan Football season is no exception. The sign stealer from Northwestern and one of the student managers for Michigan who caught on that someone was stealing signs met in Colorado, where neither was native, article from the Detroit Free Press. Definitely an interesting read.

Tuesday, June 17, 2008

Knowledge

You might think that what you know is simple to define - that is, the information that you are able to recall from memory or experience, or something to that effect.

Of course, as with so many things, the legal definition of "knowledge" differs from what one might consider a more conventional definition.

Legally speaking, there are different types of "knowledge." There's "Actual knowledge" which is what you know directly and clearly. There's "Personal Knowledge," which is knowleedge gained through firsthand observation or experience (as opposed to beliefs based on what others have said). There's imputed knowledge, such as the presumption that the agency is aware of the dealings of its agents.

There are other types of knowledge, but what I want to focus on is Constructive Knowledge. Constructive knowledge is the type of knowledge that one using reasonable care or diligence should have, and therefore is attributed by law to a given person. Basically, what this means is that it's stuff that you "should have known," that the law determines you are responsible for, even if you don't know. One example of this would be warnings. Every year, several letters are sent out by pharmaceutical companies to doctors all over the country. These letters contain warnings that certain medications have been linked to some side effect that was not listed in the Physician's Desk Reference, or that was unknown when the FDA granted approval. This letter, known by some as a "dear doctor" letter, serves to give these doctors constructive knowledge of the side effects, in theory.

Why do I waste so many words to mention this? Because this concept of constructive knowledge, or "should have known," has applications all over. An enlisted person cannot avoid liability for violating the UCMJ or a military or base regulation simply because he or she didn't "know" about it - they should have known. If you are driving in a town you've never been to and see a purple traffic light, the purpose of that color is described in the town, and you are presumed to know what it means.

The same should hold true for our military. When military lawyers warn the Pentagon that interrogation techniques they are looking into may be illegal, then the DOD should know that they need to tread carefully, and to look into the legality of the issue, rather than dive in with reckless disregard for the law. This knowledge should also be imputed to the leadership of the DOD, such as the Secretary of Defense, the President, and others. It's no wonder Senator Lindsay Graham (R-S.C.) referred to this situation as follows: "The guidance (administration lawyers) provided will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation's military and intelligence communities." We're talking about liberty, and sacrificing oversight concerning legality and individuals' liberties because there is a "high degree of urgency," as Pentagon office of general Counsel William "Jim" Hayes stated is wrong, particularly in light of his trite explanation that he was unaware of the concerns over legality (see "knowledge" - above).

Someone should have to answer for this, and heads should have to roll.

Sunday, June 15, 2008

Suspending the Writ

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (Constitution, Art. I, Sec. 9, Cl. 2).

Some people don't seem to understand what this means. I have read and heard more than one person suggest that because Al Qaeda attacked the World Trade Center in 2001, we are under invasion. This is not true. But even if it were true, it would be a moot point, because the public Safety would not require suspension of the Writ (to this point, the Government didn't even offer the invasion theory as an argument in favor of denying the writ to the detainees, rather they merely said the Constitution doesn't apply to those detained by our Government).

Let's see if we can break this down a bit, so you can follow along at home. First, we need to consider the argument - that we have been invaded. While one can easily point to the words of the President and those who support him on this war on "terror" and show that we are fighting them abroad so that we don't have to fight them here, let's delve a little deeper. Black's law dictionary (seventh edition, which is the most recent edition I have) defines invasion as: 1. A hostil or forcible encroachment on the rights of another (not applicable to our discussion), 2. The incursion of an army for conquest of plunder (definitely applicable to our discussion), 3. Trusts. A withdrawal from principal (metaphorically speaking, and also not pertinent to the discussion). It should be clear from the plain language of the definitions provided that the second definition is the one with which we should concern ourselves.

There are two prongs to this definition - the first includes the incursion of an army. 19 individuals hardly qualifies as an army, though they are tied to a network with a common goal, so perhaps, in the light most favorable to the apologists' position, one could construe Al Qaeda as an "army," though this is a stretch, because traditionally, armies have been tied to a country. The second prong, "for conquest or plunder" is the key to the definition. It is quite clear by the nature of the attacks (suicide missions) that the attackers did not intend conquest (Conquest, according to Black's Law Dictionary, is "An act of force by which, during a war, a belligerent occupies territory within an enemy country with the intention of extending its sovereignty over that territory. [emphasis mine]), and, just as clearly did not plunder (see "Pillage - the forcible seizure of another's property"), as they did not seize the property (Seize: "To forcibly take possession"). Looking at the legal definitions of the terms involved in an invasion, it should be glaringly apparent to everyone involved that the attacks on 9-11 did not serve as an "Invasion" of the United States.

Not that it would matter, even if it did. The Suspension Clause notes that the Privilege shall not be suspended "unless in times of rebellion or public invasion the public Safety may require it. (emphasis mine). Who determines what qualifies as a situation where the suspension is "required?" Well, anyone who has taken Constitutional Law should be able to tell you who the interpreters of the Constitution are, as denoted in Marbury v. Madison. The Court, of course, gets to decide what the Constitution means. And the Court has decided when the public safety may require the suspension of the Writ. In Ex parte Milligan, 71 U.S. 2 (1866), the Court addressed the concept of when the public safety may require suspension. In a nutshell, suspension is justified when there is such a breakdown in the region that the legal system can no longer function, thereby requiring martial law. The purpose of this is to limit the arbitrary use of executive power. It does not take a genius to see that there has been no breakdown of the legal system in Guantanamo Bay, short of the denial of basic legal protections for the detainees by the Government holding them, therefore, there is not backing for the premise that the Writ should be suspended.

This, of course, was known to the Government during oral arguments, which is why it was not brought up before the Court to decide, and the argument presented was merely that the Writ didn't apply. The majority of the Court disagreed, and (as I've said previously) rightly so.

Above the Law, for the God's Will

Pastor Gus Booth has moxie. He is a pastor at Warroad Community Church in Minnesota. He deserves praise for devoting his life to spreading the Lord's word and preaching from the Good Book.

That said, the pastor needs a lesson in humility. The United States grants tax-exempt status to churches. One of the conditions for that status is that the churches do not engage in politicking from the pulpit. Pastor Booth knows this, yet has determined that it is his place, his right, and his duty to inform his congregation in sermon that no Christian can vote for Barack Obama or Hillary Clinton. I was unaware that God was a Republican.

What's more concerning, in my mind, is that he seems to believe that not only is it his obligation, but that the good people at Americans United for Separation of Church and State operate to "intimidate" individuals such as pastor Booth into remaining silent on the issue. This is rather misguided.

Nobody is telling the pastor that he cannot have a political opinion. Nobody's telling him that he cannot share that opinion. The issue lies with pastor Booth's attempt to have his cake and eat it, too. As the top official of his church, his salary is paid by tax-exempt contributions. One of the conditions of that tax exempt status is that you do not engage in politicking. If the pastor wants to engage in politicking, then he needs to give up his tax-exempt status. If he does not want to give up the tax-exempt status, then he needs to hold his tongue. You have to take the bitter with the sweet. This protects the government and the church. Too often that dual benefit goes unrecognized, and that is unfortunate.

Saturday, June 14, 2008

Highlights from Boumediene v. Bush

The PDF of the decision is available here.

It's too simple to say why the Court ruled the way it did in one or two sentences. You need a little more. I'm going to go through some of what I consider the highlights from the majority opinion here.

The issue of the case is whether the petitioners (individuals classified as enemy combatants by our Government who are being held at Guantanamo Bay, Cuba indefinitely) have the Constitutional privilege of Habeas Corpus. The holding is that the petitioners do have this privilege, and that the Military Commissions Act, Sec. 7, is an insufficient substitute for this privilege.

Habeas Corpus, for those who are unaware, is the right to challenge the validity of one's detention before the court (Black's Law Dictionary, 7th edition). This right is guaranteed under the Constitution in Art. I, Section 9, Cl. 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Taken in strict constructionist terms, this may seem to be all the reasoning one might need. However, there is more to what constitutes what is Constitutional than simply reading the plain language of the Constitution. One must also consider stare decisis - previous rulings by the Court interpreting the Constitution, and consider how the law in question compares to the laws previously ruled upon.

After conceding that the State was authorized to detain those captured and classified as Enemy Combatants for the duration of the conflict (Hamdi v. Rumsfeld 542 U.S. 507 [2004]), the Court set out to determine how and whether the law applied. First, the Court noted that these individuals were all captured, some on the battlefield, others in such locations as Bosnia and Gambia, and noted that none of the individuals petitioning the Court were citizens of a nation with whom the United States was now at war. The CSRT (the "alternative" to habeas review authorized under the MCA) had reviewed these individuals' petitions (the petitioners were not authorized legal counsel in these - it's not a trial - and they were not able to view much of the evidence presented against them - Democracy in action).

Now to get into the decision - The Court had to first determine whether the MCA served to deny federal court jurisdiction for habeas proceedings - which it did - and then the Court had to determine if this law was valid, thereby requiring the petitioners' cases be dismissed. In otder to determine the validity of the claim, the Court had to consider which of two possible reasons the Petitioners were barred from seeking Habeas relief: their status as "enemy combatants" as they were designated by the U.S., or because they were housed in Guantanamo Bay.

The Government's position was that these were non-citizens who were designated enemy combatants, and they were housed outside the United States, therefore they have no Constitutional Rights. Another way of putting this is "We get to designate what these people are, and we designated them enemy combatants. We did this because we think that Eisentrager [339 U. S. 763 (1950)] will allow us to deny them Constitutional rights." This justification should give Americans pause, because it basically says that the Executive Branch can designate whomever they want "enemy combatants" and deny them right to challenge their classification, to view the evidence that led to that determination, which goes against one of the fundamental tenets of our nation - that we were distrustful of the Government's power of the People.

The Court referred to the Magna Carta in its support for the importance of the Suspension Clause - that No man would be imprisoned contrary to the law of the land (Art. 39). It also cited Blackstone, who stated that the Habeas Corpus Act of 1679 (which established the procedures for issuing the writ and served as the model for the Colonies' habeas statutes) was the "stable bulwark of our liberties." The Court tied these, and other concepts together -
This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from liberty were endemic to undivided, uncontrolled power. The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.
Justice Kennedy's opinion also points out that the Suspension Clause existed in the original draft of the Constitution - predating the Bill of Rights - providing even more evidence of the importance of the Writ to the Framers.

So the Writ is important to America. How does this apply to foreigners? Well, the Government said that the Writ has no application to individuals classified as enemy combatants and held outside the United States (see Eisentrager). The difference, the Court notes, is that Eisentrager deals with individuals held in German prisons, whereas the detainees at Guantanamo Bay are held on a U.S. government facility in a U.S. territory under complete U.S. control. Generally speaking, citizenship of the individual seeking relief is viewed as more of a non-factor based on American and British precedent, see e.g., Sommersett's Case, 20 How. St. Tr. 1, 80-82 (1772) and generally Khera v. Secretary of State for the Home Dept., A.C. 74, 111 (1984).

The Government argued that the Writ does not apply because, like Scotland and Hanover with respect to England (where the writ did not apply), Cuba has its own court system. This is a false analogy, though, as the detainees, while technically on Cuba, are held in a U.S. Territory and are not authorized access to Cuban courts, whereas prisoners in Scotland and Hanover were. In terms of sovereignty, the Court notes that there are two types - De Jure sovereignty (which is what Cuba holds over Guantanamo Bay), and De Facto sovereignty, such as that held by the United States over the same. The Court held that De Facto sovereignty controls questions regarding habeas standing, which makes sense.

This is one of the reasons supporting a rejection of Eisentrager. Another is that relying solely on Eisentrager would mean that the Court reversed its position from the Insular Cases, where it said that questions regarding extraterritoriality needed to be viewed individually based on the circumstances. Further, the prisoners in Eisentrager had already been tried and convicted (this is important to the Court in distinguishing the cases) and they did not challenge their status, as the detainees are.

The meat of the decision, indeed the lines that I've heard the most over the past couple of days, come from this next section. The Government claimed that it has no jurisdiction over Guantanamo Bay because of the lease treaty of 1903, and thus the Constitution has no effect there. Because of the importance of the Court's answer to this, I will include the complete text from the opinion here:
The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited," but are subject "to such restrictions as are expressed in the Constitution." Murph v. Ramsey, 114 U.S. 14, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Courts recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. (emphasis mine)
Basically, Eisentrager does not apply, and the detainees are entitled to habeas relief in U.S. Courts because there are no other courts in which they could challenge the validity of their detention.

The Court did touch on the question regarding suspension of the Writ, and noted that there is no invasion or rebellion, the requisites for which the Writ may be suspended under the Constitution. The case law the Court cited shows incidents where habeas was intended to be streamlined and strengthened, not diluted as the Government sought to do in Boumediene.

Given the length of the majority opinion, I will look at the dissent in a future post. Again - I agree with this decision and find it good for our Nation.

Friday, June 13, 2008

Helter Skelter

One of the Manson family murderers has the chance to be released. California has a law that allows inmates who are terminally ill to petition for release to be cared for by their family members at their expense. It is through this law that Susan Atkins may be entitled to get out of prison.

Susan Atkins was one of the members of Manson's "family" who killed Sharon Tate (an actress) and others at Manson's direction. Details about the crime can be found at Professor Douglas Linder's famous trials website here.

I understand the desire to be compassionate. But there are circumstances where I think compassion needs to come from a source other than the state. This is one of those situations. Don't give her the dignity of a release - show the People of California that her life sentence meant what it said.

Thursday, June 12, 2008

A Victory for Liberty

The Supreme Court ruled today that Guantanamo Bay detainees may challenge the validity of their detention in U.S. Courts. This is a good thing for those who love liberty.

Basing most of what I am about to write on my memory from National Security Law and ConLaw, I will try to explain what I understand as President Bush's (and Congress) intent was in the law that was overruled. In essence, the law that was challenged denied habeas corpus to the detainees at Guantanamo Bay.

The President was probably relying (as he had in Hamdan v. Rumsfeld) on the premise that because the detainees were being held outside the United States - that is, they were in Cuba - that they would not be subject to habeas corpus - that the Constitution and the laws of the United States would not protect them. Since this failed in Hamdan (executive order), he created tribunals that would review the detention process. This review does not meet muster for what is required in a Habeas petition. Justice Kennedy commented on this in the Opinion (quoted from - Lyle Denniston at SCOTUS Blog): "[The Suspension Clause] protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periouds of formal suspension, the Judiciary will have a time-tested devise, the writ, to maintain the 'delicate balance of governance' that is itself the surest safeguard of liberty. [Those who wrote the Constitution] deemed the writ to be an essential mechanism in the separation-of-powers scheme." Justice Kennedy also noted that the political branches of government do not have "the power to switch the Constitution on or off at will."

President Bush stated that he "strongly agree[s] with those who dissented. And their dissent was based upon their serious concerns about US national security."

There are a couple things wrong with this. First off - it betrays the argument that we hear most often in favor of conservative-appointed justices - that they follow the Rule of Law. President Bush seems to argue that the justices he appointed, as well as Thomas and Scalia rule according to how they feel. This is exactly what Conservative refer to as Judicial Activism, and it strikes me as odd that the President would argue in favor of supporting the decision of Justices who let their opinions determine how they rule as opposed to the law and, particularly, the Constitution. Second, this decision should be one that President Bush applauds, because it holds one of his basic tenets on the war on terror undisturbed - that "we will not allow this enemy to win the war by changing our way of life or restricting our freedoms (emphasis mine).

Preserving habeas corpus review for those detained by our Government can be viewed as nothing less than ensuring that our freedoms are not restricted. This is a good ruling.

Nelson at the Liberal Journal has also posted on this topic.
Thanks to Just Wondering at Vim and Vinegar for linking to this post.

For more information on this matter, look at Melissa's post at WriteChic.

Wednesday, June 11, 2008

Shifting Goalposts

After 9/11/2001, President Bush declared war on "terror." Terror, and terrorist and terrorism, is an interesting idea - how does one define "terror?" How does one frame a war on terror? It's not a tangible enemy such as war against "Germany." In a situation such as the war on "terror," what we find ourselves fighting is an idea; a "terrorist" to one person is a "freedom fighter" to another, so it's sticky even to say who we are fighting against.

When one has such difficulty in defining what the enemy is, then it's no doubt going to be difficult determining how to define victory against that enemy. Here's where the concept of shifting goalposts comes to play. One the one hand, "victory" in war has traditionally meant the eradication of the enemy, or its unconditional surrender/capitulation. The latter cannot happen in a war against an idea, and the former is something that is only won when every member of that idea is defeated, which is an impossibility spawned by the definition.

This is the conundrum with the war on terror. You see, when we declared "war" on "terror," the Commander in Chief of our military stated that we would "conquer" the enemy; that we would win. Less than two years later, however, the President stated that the war on terror was not a war we could "win." Then, in 2005, the selfsame head of the Executive Branch stated that we would not settle for anything less than "complete victory."

Now, I'm not entirely sure how one can achieve "complete victory" in a war that we cannot win, but I would assume that it has something to do with shifting goalposts. These days, it's not about whether or not you "conquer" the enemy, especially if the "enemy" is whoever you say he is. Instead, the key is to redefine the parameters of the operation in such a manner that you can claim "victory" under the new rules (such as some are suggesting the NBA has done with referees in instances in the 2002 playoffs with the Lakers against the Kings and in 2005 with the Rockets against the Mavericks), or at least delay acknowledgement of the impossibility of reconciling the goal from the statement until such time as you can shift the blame for the inevitable failure on to someone else.

And people wonder why the President is being predicted to be remembered as a failure. When the defining piece of your legacy can be viewed as nothing less than a failure (and the absence of victory, however impossible to achieve, makes it exceedingly difficult to view it as otherwise), then that title is a difficult one to shake.

Wednesday is Haiku Day

Haiku haitus
Has hit the Binjo Ditch, just
No creative time...

As always, I look forward to your submissions.

Tuesday, June 10, 2008

Saturday, June 07, 2008

Reforming Tort Reform

I have had a couple conversations over the past few days with individuals regarding tort reform. One of the individuals was in favor of capping liability. Another was opposed to capping liability. The general idea behind Tort Reform is that frivolous lawsuits and a litigation-happy nation drain businesses of their funds, driving people out of work and driving up the costs of products. This also, the hypothesis goes, results in mom and pop corporations being forced to close because they cannot afford the liability for the harms that they have caused.

More often, though, the companies involved are not mom and pop corps, rather, they are multinationals who can well afford the cost of litigation and even factor that in to their business plan. For example, let's say there's a pharmaceutical company designing a new drug to treat some ailment. Research and Development of a drug can cost tens to hundreds of millions of dollars before the FDA approval is granted. The company, of course, cannot sell the drug until the approval is given, so the impetus is on getting FDA approval as quickly as possible to recoup that expenditure as rapidly as possible. The best way to do this is to cut corners. This can come in many different forms. The most obvious is to not do complete research on side effects. Another method of cutting corners is under-reporting findings, burying a 2 paragraph blurb about a serious side effect 800 pages into a 1000 page document. A third avenue of cutting corners is to under-represent or misrepresent your findings. A good example of this would be the Ford Pinto case, where the company knew of the risk of death from rear-end collisions, calculated the cost for paying out the wrongful death cases, compared that to the cost of recalling and repairing the defect, and opted to continue to sell a product they knew could (and would) kill people in a cost-saving maneuver. The problem with these methods is, eventually, the truth will come out. It's a calculated risk, though. The side effects might not manifest themselves for (say) 10 years after the product entered the stream of commerce. By then, though, the company has made millions, or even billions selling the product, not only recouping the original investment, but allowing the company to reserve hundreds of millions of dollars for the inevitable litigation that they know is coming (and since they prepare for what they know is coming, the argument that plaintiff's firms drive up the cost of medication is virtually nil).

Of course, these companies are for-profit companies, which means they owe a fiduciary responsibility to increase shareholder value. One way to do this is to expand the sales of their medication. How does one do that? They market the product for purposes it was not originally approved for. In the pharmaceutical realm, this would mean off-label marketing, or marketing for purposes other than what the FDA approved the product for. The companies will hire other companies to write off-market friendly literature which they can then distribute (think of the tobacco companies with their doctors who could show no definitive link between smoking and lung cancer), knowing that people will trust the literature and expand the use of said product.

The problem with capping liability, besides the fact that it would free up more profit for the company, is that often times those injuries caused by the knowing misrepresentation or under-representation of the company will cost more than what the liability cap might allow. If I take a drug and develop lymphoma as a result, the treatment for that, and the cost of medications will continue indefinitely. Capping liability per plaintiff would essentially punish them for relying on the misrepresentations of the company as to the safety of their product.

There's more to tort reform than this, such as the trend towards arbitration vice litigation with a minimum injury requirement before one can even make a claim for recovery, but this post has gone on long enough.

Friday, June 06, 2008

This Day of Days

Take a moment to remember this - the anniversary of the invasion of Normandy. Remember, and thank those of every era who served, and particularly those of the Greatest Generation, who gave more than anyone else could truly understand.

For Love of Country

I'm not so naive as to believe that everyone who goes to the Olympics does so simply to compete the best they can for their country, even if I think that should be the major driving force. However, I do believe that one aspect of the Olympics is that you are representing your country. I remember, about 16 years ago, hearing about some American guy who decided he wanted to compete for the Suriname team, even though he could produce no evidence that any member of his family had ever hailed from Suriname. I remember thinking there was something just wrong about that. As happens so often in time, history repeats. In the most recent situation, WNBA player Becky Hammon, spurned from her U.S. team (she's a U.S. resident and citizen), has chosen to play for the Russian team. I know that the Olympics formally lifted the ban on professional athletes back in 1992, but isn't it a little soon to allow Olympic free agency? As an Olympian, you are a representative of your nation; for two weeks, you are that nation. From a purist standpoint, representing a nation that is not yours simply because you wanted to go to the Olympics and were deemed not strong enough a component for your country's team runs contrary to the spirit of patriotism that should, at the very least, be a part of each Olympian.

For what it's worth, because I've heard others claim that nobody complained when Hakeem Olajuwon played for the Dream Team - he didn't do so until after he became a United States citizen. In other words, he represented his country. Apples and oranges, people. He did the right things to get on the team. He wasn't motivated primarily by selfish ambitions.

Thursday, June 05, 2008

Number 11

The Detroit Redwings won their 11th Stanley Cup last night. I've not been following hockey as much since I moved to Houston, in part because I have no cable and am unable to tune in to most games, but also because there are no NHL teams in Houston, so local coverage is nil.

A couple comments about the finals. First off - the Redwings were phenomenal. They were precision-like in their execution, and they played as well as one could expect a champion team to play. Second, and many people are going to be saying this - Sidney Crosby was outstanding. It's clear that he is well suited to serve as the face of the league. His determination and dedication to his team and his game were things that all sports fans admire. Third - the NHL needed these finals. Over the past three years, the Stanley Cup was won by Anaheim, Carolina, and Tampa Bay. None of these venues are traditional hockey areas, and their stories, though they did play against Canadian teams, are not ones that will drag in the casual fan. The NHL needed Detroit vs. Sidney Crosby just like the NBA needed Magic/Bird in the 1980s. The next thing that needs to happen is that Detroit and Pittsburgh need to meet in the finals again next year. I'm not just saying this because I want the team I root for and the player who has won me over as a fan in the finals again, but because it extends a story line that draws in viewers and makes observers fans.

I just hope Pittsburgh can keep their core team together and Detroit's goaltending can stay consistent enough for this to happen.

Wednesday, June 04, 2008

Sunday, June 01, 2008

Conversation With the Princess

This morning, as I mentioned in my previous post, we ate breakfast at the Guenther House in San Antonio - by far one of the top 3 restaurant breakfasts I've enjoyed in Houston. We had a bit of a wait to be seated. Fortunately, the house is right on the San Antonio River, with a pretty nice-sized seawall attached, so you got a good view without too much risk of getting wet.

The Princess had been looking over the side at a couple mallards that were swimming about. She walks over to me and asks me if I've ever eaten duck. "Yes, Princess, I have."
"Oh, then those ducks probably don't like you."

After asking Mom the same question and receiving a negative reply, it was back to watching the ducks swim.

I guess I know now why ducks don't come up and start casual conversations with me.

Town Pass

We spent this weekend in San Antonio, where we met the Photogs, Red Hot Mamma, and her underling for breakfast at IHOP followed by a day at Sea World. Fun was had by all. The Boy and the Princess were both tall enough to ride multiple rides, and Photog was like a kid in a candy store amongst the magic and wonder of the park. Our day started less than gloriously, as we had to spend about 30 minutes in line waiting for the 4 families in front of us to buy their tickets. What struck us as odd was that the Photogs and ourselves were able to get through in about a combined 3 minutes.

After this, we hightailed it over to watch the Cannery Row Caper. The Sea Lions are perhaps my favorite part of the park. Next up was the Log Flume. The best thing about the log flume, in my opinion, is that it's a ride that everyone in the family can enjoy. There are a couple drops, but more importantly, the Apple can go on as well. And he did. And we rode. And the Apple had a Kool-Aid grin as wide as the Guadalupe River. His enjoyment (along with the Boy and the Princess's) made the line completely worth it.

Following the log flume, we took a quick break for the children and spouses to catch their breath while the big boys went on the Great White. This is quite possibly my favorite roller coaster in Texas. Photog and I went on it, expecting Underling to show up while we were in line. Except there was no line. So we got on and went through it on the front row, which was great for me, and possibly even more fun for Photog. We get done and get out to where the families are and hear that Underling has gone to get on the ride, so Photog and I run off to catch him. We get a second ride (completely worth it), and then it's time to cool off. The Penguin encounter is perfect for a fourth stop because it's nice and cool. It was around this time that I realized that I was a bit tired, and possibly a little dizzy from the roller coaster. So I sat for a few minutes while everyone else enjoyed.

This year was the first year that The Boy was big enough to go on any roller coasters. He was just tall enough to ride the Steel Eel. This roller coaster is about 1.25 miles long (I'm completely making up a number here) and goes up and down and up and down. There are no inversions. Yet this thing scares the snot out of me. I'll do any ride in the park - except this one. But the Boy was undaunted. He had not been on a grown-up roller coaster before and he wasn't going to let anything like the actual possibility of the coaster crashing into the earth and 75 miles an hour stop him. So Mrs. Photog and I opted to take the Princess and the Apple over to the kid's area while everyone else had their ride. The kids had fun, particularly after they found the sandbox. This was great for me, because I got to sit while they played.

Long story less long, the kids played some more, we saw the Shamu show (pretty good, especially the part where they had all the active duty and former military members stand up to be recognized - thank you Sea World, it's schmaltzy, but welcome), and then we ate supper. Supper passed, and the team opted to take in the ski demonstration, which was fun for all, and gave the Apple the chance to fall asleep. I kept an eye on him while the rest of team BabyLawyers went on the Rio Loco. Rio Loco resulted in a splitting of the teams, as Red Hot Mamma and Underling went to the Lost Lagoon for some swimming-type fun and the rest of us went back on the log flume, then over to the dolphins. The Boy, Underling, Red Hot Mamma, Photog (I believe) and I all got to pet one of the dolphins that came up. This was an amazing thing for me - I'd never touched swimming sea life that I wasn't preparing to eat before, and The Boy has an experience he'll be able to talk about for years.


We then walked through the shark tank; which we all loved, and finally, it was off to the Journey to Atlantis. Here's the deal. You get on a car that seats 16 people. You go up about 3000 feet (or 100 feet, as the case may be), turn around backwards, go down a nice little backwards slide, then turn around forwards for a blind drop 100 feet into a giant splash pool. This was the best ride of the day, not just because it was a nice twist on a good ride, but because there was literally no line the whole time, so Photog, The Boy, the Princess, and I were able to ride 4 times in less time than it took to ride any other ride in the park once. We were all giddy. And tired, as by this time it was about 9 p.m.

So we packed up and went back to the hotel, where the kids bathed and fell pretty much immediately to sleep.

The morning saw us getting breakfast and preparing for the drive home. We took the opportunity to have breakfast at a non-chain restaurant - namely the Guenther House Restaurant in the King William section of San Antonio. This was nice. This was (is?) the home of the Pioneer flour company, and there's a nice restaurant there with the museum. The food was outstanding, including the best biscuits and gravy I've had in Texas. I'd go back to San Antonio just to eat breakfast there again - it was outstanding.

Then a nice drive home, with a stop at Buc-ee's for some fudge and beaver nuggets, and now it's time to recuperate before work (and jury duty) tomorrow.

I think next year we will consider a season pass, as there's just enough stuff to be able to do over again to make it worth the extra 12 bucks.