Between The Briefs: Updates On The Rule Of Law
While the political infighting rages onward to the next primary state and beyond, the legal world keeps on churning out it’s own brand of case and controversy. Here are some updates on various legal issues in play at the moment:
— Friday, January 11th, is the sixth anniversary of the arrival of prisoners at Gitmo. There will be a protest rally on the Mall in Washington, D.C., as well as other events around the country today and tomorrow — sponsored by the ACLU and a number of other groups as well. Thought quite a few of you would be interested in this. Jeralyn has more. And this post on habeas rights and constitutional and human rights considerations highlights why this ought to be important — for all of us.
— Yesterday’s argument of the Indiana voter ID law has created a stir among legal and political watchers alike. SCOTUSblog has some analysis on the politicization of the Supreme Court, how various factions argued their philosophies by proxy while grilling the lawyers. Fascinating stuff:
It was apparent from the outset that the Court’s more conservative members were most interested in (a) finding that no one had a right to bring the constitutional challenge, at least at this stage, (b) putting off a challenge until the law has actually been enforced or at least until just before election day, or (c) salvaging as much as possible of the Indiana photo ID requirement on the theory that voter fraud is a problem that states have a legitimate right to try to solve. There was some hand-wringing, particularly by Justice Samuel A. Alito, Jr., over how difficult it is for a judge to “draw the line” on when a voting requirement would or would not pass a constitutional test.
And it was equally apparent that the Court’s more liberal members were most keen about (a) pushing the Court to decide the case now, (b) doing so in a way that at least narrows the impact of the Indiana law on poor or minority voters, and (c) applying some constitutional pressure on the states to regulate voter fraud — if they do so at all — with more specifically targeted statutes….
Again, the swing vote appears to be Justice Kennedy who was signalling through his questions yesterday that he’s looking for a stance that straddles both sides which, generally speaking, ends up satisfying no one.
— Balkinization takes this analysis several steps further, with a piece from Sandy Levinson on the constant tensions among the various factions on the court between political and legal analysis. Well worth your time to read and discuss. Especially when read in conjunction with this from the NYTimes and from the WaPo. Add in these thoughts from Bean at LGM, as well.
— The NYTimes highlights another defendant who was freed thanks to the efforts of The Innocence Project which pushed for DNA testing of samples that remained available and, ultimately, said testing showed that the defendant was innocent of the charges. (A little good news for your day.) With new technologies becoming available that allow for more accurate and careful testing, review of appeals procedures is in order in a lot of states, including my own home state of WV. Having done appeals and habeas work when I was in private practice, getting further forensic testing approved when new technology makes that possible can be an arduous process at best. Where there are substantive questions of innocence or foul play or other serious questions about misconduct or poor representation, we owe it to the interests of justice to do the right thing and re-check the evidence.
— Yet another issue on self-dealing, non-transparent, no-bid contract cronyism is raised within the DOJ and, specifically this time, with regard to a contract handed to former AG John Ashcroft’s firm for which there was, apparently, no oversight during Gonzales’ tenure. And while this may all be aboveboard and legitimate, and Ashcroft may be doing his job, the larger questions of continued "hide the details from the public" conduct within the DOJ hierarchy are very troubling. Lessons learned from the USAtty firings? From investigations of the DOD no-bid issues? From any number of other problems that have been ongoing for years? I think not.
— Interesting detail on the recent refusal of a federal judge to probe the CIA tape destruction via SCOTUSblog:
In a three-page order (found here) in Abdah, et al., v. Bush, et al. (docket 04-1254), the judge said that he had been told at a December hearing by a Justice Department lawyer that the criminal investigation will include the question of whether there has been any violation of court orders to preserve evidence about abuse of prisoners in U.S. custody….
There is generally a presumption that officers of the court and, particularly, government attorneys are operating in good faith in terms of not lying to the court. But based on the fact that this is an issue of a potentially deliberate destruction of evidence in an attempt to hide it from both public and judicial scrutiny, in effect nullifying potential evidence of legal violations as well as a political shitstorm of Abu Ghraib proportions, and that Vice President Cheney’s chief counsel David Addington’s name keeps bobbing up like some worm-infested apple in the CYA bad law tank as providing some opinion on said tape destruction, wouldn’t a wee bit of skepticism have been in order here? I’m just saying…
— Speaking of the Bush White House and a histor of bad faith, Marcy has two exceptional bits of analysis worth some reading: (1) regarding the "disappeared" WH e-mails, back-up tapes and stall tactics; and (2) Dan Rather was awarded discovery in his lawsuit.