Saving A Life By A Slender Legal Thread

While many of us are rightly gratified by the news that Troy Davis has been granted a new trial, I think it is important to consider how long a shot his appeal to the Supreme Court truly was (as the New York Times tells us in an editorial here today, Davis was convicted of the 1989 murder of an off-duty Savannah police officer and had resided on Georgia’s death row ever since; many witnesses have since recanted their testimony, according to Amnesty International).

The Times’ editorial also points out the frightening extent to which Antonin “Red Queen” Scalia and Clarence Thomas felt “considerable doubt” that Davis’ claim was “constitutionally cognizable” (and by the way, kudos to Prof. Alan Dershowitz for claiming here that Scalia’s remarks are an “outrage against his church,” which would be the Roman Catholic one, by the way…not sure exactly what it says about those in the hierarchy of my faith that that needs to be pointed out a Jew, and I use that term towards Dershowitz with all due respect).

As the Times tells us, the supposed legal rationale for Scalia and Thomas’ dissent in the Davis case was the Antiterrorism and Effective Death Penalty Act of 1996, which the two claimed “prevent(ed) the courts from intervening on behalf of a death row inmate who claims to have proof of his own innocence” (fortunately, Justice John Paul Stevens explained in a separate opinion that Scalia and Thomas were wrong).

And Elaine Cassel of Counterpunch tells us here that…

The Antiterrorism Act of 1996 was a response to the 1993 bombing of the World Trade Center and the 1995 bombing of the federal building in Oklahoma City. (Authors David) Cole and (James X.) Dempsey describe the Act as a massive assault on First Amendment rights of speech, assembly, and petition, and a deeper entrenchment of the “guilt by association” tradition active in the FBI.

As noted above, the Act removed barriers to FBI investigation of activities protected under the First Amendment. It also removed some restrictions on the famous FISA (Foreign Intelligence Surveillance Act) Court–where federal judges sit in secret to consider, and mostly approve, Justice Department requests for widespread surveillance of “terrorists,” including pen registers and “trap-and-trace” surveillance, methods that can capture income and outgoing telephone calls. The law also opened the door for the Immigration and Naturalization Service to deport mostly Muslim citizens. The deportations were based on largely secret evidence, and no overt acts needed to be alleged.

And this tells us that the 1996 Act “was introduced as part of Speaker of the House Newt Gingrich’s Contract with America, passed with broad bipartisan support by Congress.”

More fool them, including President Clinton for signing it into law.

Finally, bmaz of firedoglake makes the following points here about the Supreme Court verdict that granted Davis a new trial…

Scalia is right, this particular form of relief is exceedingly rare (that is the only thing he is right about here). What is even more shocking is that it got done in this case, with this court, at this time. While Davis’ family and attorneys maintained their optimism relief would be granted, scant few other folks experienced in these things did including, quite frankly, me. Sonia Sotomayor did not participate, so the majority had to find five votes somewhere, and this is a real head scratcher. The majority opinion was unsigned, but an attached concurring opinion was noted as “Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, concurring”. Thomas, predictably, tagged along with Nino on the dissent. That would appear to mean the majority found two more votes for Davis among Kennedy, Alito and Roberts. Now that is shocking.

At the very least, I hope this prods Congress into reviewing the ’96 Act reinstituting the legal protections that were foolishly gutted in the panicked wake of the ‘90s terrorist attacks (all of this occurred before 9/11, of course).

However, since this Congress is primarily the bunch that gutted FISA last year, I’m definitely not holding out much hope.

“Spy The Beloved Country,” Obama Style

This, followed by what Keith Olbermann and Jonathan Turley discuss in this April video…

…ultimately led to this.

Update 6/5/09: And this sure as hell doesn’t help either – lots going on at the moment to try and kill Graham/Lieberman fortunately (action info is here).

Snarlin’ Arlen’s ’90s Retro Rehash

It seems that our Senator from Pennsylvania is intent on dragging out the confirmation hearing of Attorney General Designate Eric Holder well into the spring, based on this New York Times story today, which tells us that…

Mr. Specter raised questions about Mr. Holder’s role as deputy attorney general on a range of issues that included an investigation into the 1993 federal siege in Waco, Tex., that left David Koresh and about 80 of his Branch Davidian followers dead, and an espionage investigation involving a nuclear scientist, Wen Ho Lee.

But he saved his sharpest criticism for Mr. Holder’s role as deputy attorney general in three controversies in Mr. Clinton’s second term: Mr. Clinton’s pardon of (fugitive financier Marc) Rich in 2001, the president’s decision in 1999 to grant clemency to 16 members of a Puerto Rican militant nationalist group, and the Justice Department’s rejection in 1997 of an independent counsel to examine accusations of campaign finance abuse by Vice President Al Gore and the White House. In each case, Mr. Specter said, Mr. Holder appeared to go against the advice of career professionals at the Justice Department.

Geez, Arlen, you mean you’re NOT going to try and find a way to blame Holder for returning Elian Gonzalez to Cuba also? You’re slipping!

And after this is concluded, I’m sure Specter also will press for hearings into the “real” death of Kurt Cobain, as well as the “murder” of Vince Foster.

To say that all of this is pointless is an understatement; the only one of these “controversies” that I care remotely about is the Rich fiasco, which I posted about here.

And I’ll be curious to see exactly how far Specter goes with his little inquisition on Holder; as Bob Geiger notes here, Our Man Arlen did a lot of yapping about former Bushco AG Abu Gonzales, but didn’t do a whole hell of a lot to try and persuade the Repug Senate “leadership” at the time that Gonzales should go (and Chris Durang of HuffPo notes here that Specter didn’t even put Gonzales under oath when he testified; let’s see if he tries that little trick when Holder visits “the Hill”).

Also in the matter of Specter on a separate issue (FISA), we have a clip from Jack Cafferty here which states in fairly blunt language how our senator buckled on the surveillance issue the same way he did on Gonzales.

Finally, I’d like to remind Specter and the Repugs that, in 2001 when the Dems were the minority party, they chose not to filibuster the confirmation of John Ashcroft as Attorney General even though the Repugs didn’t have the now-traditional “60 votes needed for passage” (here). Though I don’t expect the Repugs to return the favor on Holder if he gets less than 60 now that they’re the minority party, I just thought I’d remind them anyway.

I sincerely hope Chris Matthews is paying attention to all this (still can’t quite get used to him as the party standard bearer against Specter, but there you are).

Update 1: Looks like Grassley wants to play with Arlen too on the Holder nomination based on this (and kudos to Leahy for using Ass-Croft to slap them down).

Update 2: Also looks like Matthews is out (oh noes!!! – I think; hmmm…).

Update 3 1/8/09: What BarbinMD sez here…

Update 4 1/12/09: More of Arlen’s particular brand of hypocrisy here (h/t Atrios)

Honoring A Legal Giant

I’m not surprised that the Philadelphia Inquirer chose to magnify the misstep of former Carter Administration Attorney General Griffin Bell to the exclusion of all else in their writeup about Bell’s passing today.

As the Inky tells us, Bell fired Philadelphia’s U.S. Attorney David Marston in 1978 at the urging of local Democratic congressman Joshua Eilberg and Wilkes Barre congressman Daniel Flood. Investigations by Marston led to corruption charges against both of them.

However, as the Inquirer tells us…

Despite the controversy, Marston was replaced by Peter Vaira, a career Justice Department lawyer who continued with aggressive investigation of corrupt politicians.

Marston went on to a successful law practice after unsuccessful runs for governor and mayor in 1978 and 1979. He is still a practicing lawyer in Philadelphia.

Firing Marston was a mistake, but at least he was replaced by a professional of comparable caliber.

And I would ask that you keep this in mind when you read something as humorous as this U.S. News and World Report article that attempts to draw a parallel between former Dubya AG Abu Gonzales and his firing of U.S. Attorneys who refused to prosecute Democrats for allegations of “voter fraud” while they ran for re-election, and Bell’s firing of Marston.

I want to point out, though, that no discussion of Griffin Bell is complete without acknowledging that, as Wikipedia tells us here, he “led the effort to pass the Foreign Intelligence Surveillance Act in 1978,” which…

…resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon’s usage of federal resources to spy on political and activist groups, which violates the Fourth Amendment to the U.S. Constitution.[4]

Ah yes, the Fourth Amendment to the U.S. Constitution; I vaguely remember it. Maybe I’ll dust off one of my college law books and read about it just to refresh my memory (based on this).

Also…

The Carter administration, advised by Bell, greatly increased the number of women and minorities serving on the federal bench. Bell recruited an Eighth Circuit judge, Wade McCree, an African American, to serve as Solicitor General of the United States, and Drew S. Days, III, an African American lawyer for the NAACP Legal Defense Fund he had admired in oral arguments before him, to head the Civil Rights Division.

So remember his misstep in the Marston case if you wish, but also recall that Griffin Bell was a prominent figure in our history who respected and honored the rule of law, truly understood our constitutional separation of powers, and sought to represent those for whom justice was deferred, but not denied.

What a pity that, despite his many years, he did not live to see FISA restored to the law he originally supported after its evisceration by a congress of rampantly corporatist Republicans and spineless, equally co-opted Democrats.