IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also a lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"
"Relentlessly sensible and often important."
-- Michael Froomkin of "discourse.net"

I'm on something of a holiday hiatus here at IsThatLegal, but just checked my buddy John Allore's blog Who Killed Theresa?, and found a link to this completely comical compendium of cooky Canadian crime for the year 2003. Click and be prepared to cackle.

Blogging will resume in earnest after 1/5/04. Happy New Year, everyone!

Red Ted brings to my attention a story in The New York Times today implying misconduct in the decision to prosecute a juvenile arson case federally rather than leaving it in the state juvenile justice system. Some kids broke into a marina to steal a radio, panicked when they saw a surveillance camera, and burned the place down. Sounds like a matter for the local juvenile courts. The trouble? George H.W. Bush's boat was in the place. Thumping their chests about "terrorism," the feds decided to step in, and the kids ended up in the federal slammer on a strict sentence under the federal sentencing guidelines rather than on juvenile probation in the state system.

Obviously this is not how comparable arsons are generally handled. This kid is definitely getting a harder time for happening to destroy an ex-President's property than would a similarly situated kid for destroying a non-ex-President's property.

But you know what? I'm not especially moved by the young arsonist's plight. Sometimes in life, you're just not lucky, and you pay for it.

This case is almost exactly like a case that happened in Newark, NJ, about 13 years ago or so, just before I arrived at the US Attorney's Office. Some local kids decided to mug a few yuppie-looking professional types as they walked to their cars. They made off with some money and credit cards. But -- of all the bad luck -- the yuppies they chose to mug were federal prosecutors walking to their cars! The kids had no idea, of course, but it didn't matter. The case got prosecuted federally. The kids ended up doing real time rather than a juvenile stint in the state system. And I wasn't especially moved by their situation, either.

In my view, if you're gonna be out mugging yuppies and burning marinas, you run the risk that things aren't going to go quite as you envisioned them.

Last week’s circuit court decisions in Padilla and Gherebi were met with deep skepticism at the blawgosphere’s high-elevation locations. Judge Reinhardt’s decision in Gherebi came in for particular scorn. The passage that really got some people roiled was this one:

"Even in times of national emergency - indeed, particularly in such times - it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike."

Glenn Reynolds called this "gasbaggery" that would do more to hinder than to advance a civil liberties agenda. Professor Bainbridge concurred.

To the Wall Street Journal, both decisions—Padilla and Gherebi—were evidence of a "September 10 mindset."

And Feste, echoing the criticism of these decisions, approvingly recalled the unshakeable instinct of many of the WWII generation to defend the incarceration of Japanese Americans:

My WWII generation mother and I often had discussions about the Japanese detainees, being a 60's child I thought it wrong on every level and had peers who were born in the camps. Mother's conviction could not be shaken "You don't understand, you haven't witnessed an attack on America, you were not in California in 1941, we were at war with Japan, fighting for our lives, for your future."

On that subject, allow me to quote another opinion that, in its time, might well have been—indeed, probably was—dismissed as "gasbaggery":

This exclusion of "all persons of Japanese ancestry, both alien and non-alien," from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over "the very brink of constitutional power" and falls into the ugly abyss of racism. . . . I dissent . . . from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

Pretty gassy, huh?

How about this one?

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

Whew! Spare me! Didn't these judges know it was wartime?

The answer, of course, is that they did know. The first excerpt is from Justice Frank Murphy's dissent in Korematsu v. United States (1944), and the second is from Justice Robert Jackson's dissent in the same case.

Gasbaggery? Hardly. Wrong-headed, and ignorant of the real threat the nation faced? No. History has revealed, beyond question, that the Supreme Court struck the wrong balance between order and freedom in Korematsu, and that Murphy and Jackson were right.

What does this mean for the quick and easy criticism of the decisions in Padilla and Gherebi, and of Judge Reinhardt's expansive language in Gherebi?

To my eye, it is evidence of a basic and dangerous misconception about the judicial role during times of war and crisis. Chief Justice Rehnquist published a book back in the late '90s called "All the Laws But One," the theme of which was that "in time of war the government's authority to restrict civil liberty is greater than in peacetime." (Those are the Chief Justice's words, on p. 224). In Rehnquist's view, it is "a desirable phenomenon" that federal judges are "reluctan(t) to decide a case against the government on an issue of national security during a war" (p.221).

Rehnquist reached this conclusion after a highly selective review of American legal history from the Civil War through World War II – a review that omitted the many stories of federal judges who stood up to the Executive during times of war and crisis. And there are many. I detail some of them in this review of Rehnquist's book that I published in the University of Chicago Law Review in 1999. (PDF file)

My review makes clear that there is a rich tradition of judicial rights protection during wartime. Padilla and Gherebi fit squarely in that decision, and ought to be praised for their courage rather than derided as gasbaggery that is blind to the peril we face.

Writing several years before 9/11, I argued in my review of the Chief Justice's book that his praise of judicial deference to the Executive in wartime was dangerous: "Future wartime presidents, generals, and judges will read this Chief Justice's book," I noted. "[Those] readers should be familiar not just with the stories of repression, but also with the stories of liberation."

I say "bravo" to the four judges in the two circuits who found the courage to sign opinions refuting the Administration's position. Those judges join a proud tradition. Surely their views are no more self-evidently appropriate for dismissal than were those of Justices Murphy and Jackson in Korematsu—Justices who were, after all, exactly right.

This post is not, by the way, an out-and-out defense of the outcomes of both cases; Gherebi and Padilla present different legal issues, and the two courts take different sorts of routes to their conclusions. The post is instead a defense of the two decisions against the charge that their rhetorical insistence on the protection of liberty in wartime is foolish and out of touch with the times.

Eugene Volokh is predicting a reversal of the Second Circuit's ruling in the Padilla case.

His reasoning is simple: Congress authorized the President to use military force against al Qaeda; military force has always been understood to entail the power to detain; therefore Congressional authority extended to the detention of an American citizen affiliated with al Qaeda when apprehended on U.S. soil.

The Court might ultimately reverse, but Eugene's reasoning strikes me as overly (and uncharacteristically) simplistic. I would certainly agree that in the context of military action against a nation-state with troops that wear uniforms--that is to say, nearly the only sort of military action that the country has ever engaged in--a Congressional authorization to use "military force" against that nation-state would entail a right to detain, and would, in particular, entail a right to detain those who do not wear the nation-state's uniform and seek instead to infiltrate the United States for subversive purposes.

But this was a new kind of enemy, fighting a new kind of war with new kinds of tactics. Yes, I know about the Barbary Pirates and all that, but let's face it: the enemy and the threat that the Congress and the President faced on the morning of 9/12/2001 was quite different from just about any enemy and threat the nation had faced before. Surely this must mean that among the many concepts that were in flux on that morning, "military force" was among them. Congress might have known what it meant by "military force" in the context of a war--there Congress would have as a touchstone a fixed set of powers deriving from clear historical usage and practice. Here Congress didn't. (Neither did anybody.) And if that's so, I think there's a strong argument--indeed, a very strong argument--that the words "military force" in the Resolution that passed after 9/11 should not be read by the judiciary as a blank check.

Suppose that at the height of the "drug war," Congress had authorized the use of "military force" against the Medellin drug cartel. Would that have authorized a Presidential order directing the military seizure and indefinite, incommunicado detention of American citizens captured in the United States for dealing cocaine obtained from the Medellin cartel? Would the use of the word "military force" have been enough to do the trick there? I would hope not, and I don't see how this case is too terribly different.

We learn today that the airport is going to be seeking a $350 million bond issue in 2005 and raising passenger boarding fees by fifty percent to pay to tear the building down and expand the site into what we’re told will be “a regional gateway and an architectural landmark.”

I’d have a much easier time stomaching this idea if:

(1) the airport were telling us that how this monstrous expansion will improve air service for us here in the Triangle. With just a handful of daily direct flights to major cities off the Eastern Seaboard and essentially no international service, RDU is, in my view, a pretty lame airport, given the size and sophistication of the communities it serves. It’s lovely that RDU wants to raise its aesthetic profile, but I’d be much more interested in hearing first about how it will improve air service.

(2) the airport were not talking about creating a monstrosity like Denver’s DIA airport. They’ve hired the same architect that designed DIA, and he’s talking about “a terminal built in modules with rolling rooflines suggesting the Piedmont’s rolling hills and the warp and woof of Carolina textiles.” (Excuse me, I have some urgent business to attend to in the toilet ….. OK, there, that feels better.) You know what? I lived out in southeastern Wyoming when DIA was built – it was our regional airport – and the architect claimed that his design would suggest the majesty of the peaks of the Front Range of the Rockies. You know what Denver got? A big, silly-looking circus tent.


I’d suggest a very different approach to the project to the Airport Authority: one that focuses on improving the quality of air service for this community, rather than looking to make an architectural statement.

Back before 9/11, Chief Justice Rehnquist wrote a lame little piece of armchair history called "All the Laws but One." Its argument, simply stated, was that during times of crisis, judges will defer to claims of executive authority as part of a larger, inevitable shift from liberty toward order so long as the crisis lasts. This is the way of the world, Rehnquist argued, and it's more or less as it should be.

In a review of Rehnquist's book (synopsis here), I argued that his account of national security history was absurdly one-sided, and entirely missed an important rights-protective judicial tradition during times of crisis.

A panel of the Second Circuit today held that the President lacked inherent authority to order the military detention of an American citizen seized in the United States.

So much for Rehnquist's notion of inevitable deference by judges to the Executive during wartime.

The brand-new Ohio State Journal of Criminal Law has just published its first issue, and it has a nifty website.

Articles in the first issue include several very interesting pieces on the criminal justice system after 9/11 (including a piece on racial profiling and the legacy of the Japanese American incarceration by yours truly). There's also a symposium on whether we need a new Model Penal Code, and some commentaries on a wide range of topics. My own favorite of these is a provocative little commentary by Douglas Husak decrying the practical irrelevance of the criminal law and of criminal law theory.

I'm channeling Jean-Paul Sartre. So says this test. (Thanks to Larry Solum for the pointer.)

I found an interesting new blog, Who Killed Theresa?, which is about the Canadian criminal justice system. Check out this interesting and comprehensive (and somewhat startling) story about violence at Canadian colleges and universities.

The site is called "Who Killed Theresa?" because, in the late 70s, the blog's author's big sister Theresa was murdered while at college, and a botched investigation led nowhere. The case became "cold," but the author has been working tirelessly to find his sister's killer and bring him to justice.

For quite some time this past year, local attention was riveted by the murder trial of Michael Peterson, a Durham, NC, novelist, journalist, and wannabe-politician whose wife ended up dead at the bottom of the staircase of their home with what the state claimed were blunt-force traumas to her head. A jury convicted Peterson of first-degree murder, rejecting the defense theory that Peterson's wife fell down the stairs.

Two of Peterson's friends--one of them a former Congressman--is now pressing a new theory to explain Mrs. Peterson's death.

It was an owl attack.

Yes, an owl attack.

Of course, the attack did occur indoors, and the owl was clever enough to clean up all the stray feathers and take them with him when he flew away. But it was an owl that did it. Really.



It is also rumored that Peterson’s friends are working on a theory that President John F. Kennedy was actually killed by a giant Portuguese Man-O-War.

Tapes: Nixon Calls Reagan 'Strange'

Later on the same tape, a pot was heard calling a kettle "black."

There's a very interesting little wrinkle to the Guantanamo detainees case in the Supreme Court. I read today on law.com that "uniformed military defense lawyers in the Pentagon's Office of Military Commissions are preparing an amicus brief in the Guantanamo habeas case supporting detainees who are seeking federal court review of their detentions." The military defense lawyers plan to argue that federal court review of the work of military commissions is essential to the integrity of the commissions.

Is there a military lawyer out there who's also a blogger? There's an interesting question lurking in here (maybe?) about how to square the defense function of a military lawyer with that lawyer's military duty to the Commander-in-Chief. It is certainly odd that a military lawyer can, in his official capacity, file a brief in a civilian court contending that the Commander-in-Chief's legal position on the scope of executive power in that court is erroneous.

I understand that it is part of the honorable role of military defense lawyers to oppose a military prosecutor's efforts to convict and punish a soldier. In one sense, I guess you could say that the entitlement to file this amicus curiae brief is no odder than the unquestioned entitlement to file a motion to suppress evidence in a court martial. But surely there are important differences between these two filings, isn't there?

Inquiring minds want to understand the role(s) of defense counsel in the military justice system. Can somebody help out here?

UPDATE: Phil Carter suspects that military defense lawyers are filing this brief with Rumsfeld's blessing, and if that's so, that pretty much resolves the ethical issue for the lawyers.

For the next two weeks, in addition to blogging here, I'll be guest-blogging over at what promises to be an outstanding new blawg: Punishment Theory. Punishment theory has got some of the very best names in the philosophy of the criminal law. (Not all of them, though! They should also turn my colleague Joe Kennedy into a blogger too!)

Check out the blossoming discussion on federal judges' complaints about Congressional oversight over their sentencing decisions.

Yesterday's pro-merger editorial in the Chapel Hill News takes the award for nastiest public insinuation in the merger debate. Here's what the paper said:

"The greater fear, not voiced so openly, is that the county schools somehow would pull down the quality of the city schools. If funding has anything do with quality, and we think it does, that shouldn’t happen, because state law requires that a merged system be funded at the level of the higher-funded system. Any other presumed degradation rests upon perceived abilities of Orange County students, and we don’t believe the student gene pool is any lower – or higher – because of geography."

Get that? The paper wants us to believe that are only two potential explanations for the lower performance of students in the county than students in the city: funding or genetically imprinted dullness. Right-thinking people (maybe the "people of good will" the paper refers to at the end of the piece?) will accept that the cause of disparity is funding; boorish city parents will quietly insist that county kids are genetically inferior to city kids.

How, I'd like to know, would the Chapel Hill News account for the difference in performance between kids at the two elementary schools my girls have attended--Carrboro and Glenwood? (Note up front: what does *not* account for the difference is English-as-a-second-language; only 2% more kids at Carrboro are non-native speakers than at Glenwood.) According to the report cards on the schools that are now available on the web, Carrboro’s test scores for the 2002-03 school year were 81.3 for reading and 87.9 for math. Glenwood’s were 94 for reading and above 95 for math (above 95, they don't tell you the actual number).

One thing you can say for sure: what accounts for the difference is *not* a funding disparity. They're both city schools. I certainly never heard while I was a Carrboro parent that Carrboro was significantly underfunded compared to other city elementary schools.

So what might explain the difference? Must we assume that it's genetics? Or might we look instead to the fact (again, I'm looking at the schools' report cards on the web) that 38% of kids at Carrboro are “economically disadvantaged,” while 24% of kids at Glenwood are in that category?

The Carrboro/Glenwood distinction tells us quite clearly that educational "quality" (which is what the editorial is talking about) will not be equal in the city and the county just because funding is equal. There will still be significant disparities in performance between county and city schools in a regime of equal funding, and once those disparities are noted, there will be calls (and perhaps legally enforceable mandates) to narrow the gap between city and county schools. That, in turn, will require *reallocation* of funding and opportunity within the merged district--toward programs and curriculum geared to raising the level of performance of the more troubled county schools.

That may be a worthy objective. Or it may not be. But we should be able to debate its merits without one side's smearing the other as believers in the underpinnings of eugenics.

Jonathan Luna, Assistant U.S. Attorney. Rest in peace.

May your work for justice be remembered.

May your killers quickly be brought to justice.

What on earth is this story doing on the international newswire (and, I might add, the New York Times's homepage, where I found it)?

Can it really be that there's nothing more newsworthy in the world than some people in an Israeli neighborhood who are scared of a black cat?

Here's a guy who really knows how to craft a careful free speech claim. An owner of an A & W franchise (of root beer fame) in Colorado is posting religious messages on his A & W billboard out front, and company attorneys are telling him to take the scripture down. The owner, a Jewish Messianic Christian pastor (that's the "Jews for Jesus" folks), is digging in his heels for what he thinks will be a big First Amendment fight. (Note to A & W owner: the First Amendment doesn't have anything to say about private speech regulations like this.)

What does his sign say, you ask?

Chili cheese fries
Onion rings
Praise Jesus with thanks giving!
Isaiah 12:2

Tell them you'd like to SuperSize it and you get six loaves and three fishes!

This morning the Raleigh News & Observer runs this story: Edwards hawks book as lagniappe for donors

"Lagniappe?"

Will there be more than 6 readers of the N&O who know that word?