“Pelican Bay is sorta like a big university for criminals. They don't come here to rehabilitate themselves, they come here to hone their criminal skills. And the criminals that come in, when they leave, most of them are a lot better skilled when they leave than when they came in.”
-prison guard at supermax Pelican Bay State Prison, outside Crescent City California, appearing in the “Gangland” episode of the National Geographic Channel series Lockdown (debuted 2007-Mar-4)

Social Decay and Laws Gone Mad - Part 1

from the Wall Street Journal, 2009-Dec-28, p.A16:

The New Climate Litigation
How about if we sue you for breathing?

Fresh from the fiasco in Copenhagen and with a failure in the U.S. Senate looming this coming year, the climate-change lobby is already shifting to Plan B, or is it already Plan D? Meet the carbon tort.

Across the country, trial lawyers and green pressure groups—if that's not redundant—are teaming up to sue electric utilities for carbon emissions under "nuisance" laws.

A group of 12 Gulf Coast residents whose homes were damaged by Katrina are suing 33 energy companies for greenhouse gas emissions that allegedly contributed to the global warming that allegedly made the hurricane worse. Connecticut Attorney General Richard Blumenthal and seven state AG allies plus New York City are suing American Electric Power and other utilities for a host of supposed eco-maladies. A native village in Alaska is suing Exxon and 23 oil and energy companies for coastal erosion.

What unites these cases is the creativity of their legal chain of causation and their naked attempts at political intimidation. "My hope is that the court case will provide a powerful incentive for polluters to be reasonable and come to the table and seek affordable and reasonable reductions," Mr. Blumenthal told the trade publication Carbon Control News. "We're trying to compel measures that will stem global warming regardless of what happens in the legislature."

Mull over that one for a moment. Mr. Blumenthal isn't suing to right a wrong. He admits that he's suing to coerce a change in policy no matter what the public's elected representatives choose.

Cap and trade or a global treaty like the one that collapsed in Copenhagen would be destructive—but at least either would need the assent of a politically accountable Congress. The Obama Administration's antidemocratic decision to impose carbon regulation via the Environmental Protection Agency would be even more destructive—but at least it would be grounded in an existing law, the 1977 Clean Air Act, however misinterpreted. The nuisance suits ask the courts to make such fundamentally political decisions themselves, with judges substituting their views for those of the elected branches.

And now that you mention it, the U.S. appeals courts seem more than ready to arrogate to themselves this power. In September, the Second Circuit allowed Mr. Blumenthal's suit to proceed, while a three-judge panel of the Fifth Circuit reversed a lower court's dismissal of the Katrina case in October. An en banc hearing is now under consideration.

But global warming is, well, global: It doesn't matter whether ubiquitous CO2 emissions come from American Electric Power or Exxon—or China. "There is no logical reason to draw the line at 30 defendants as opposed to 150, or 500, or even 10,000 defendants," says David Rivkin, an attorney at Baker Hostetler and a contributor to our pages, in an amicus brief in the Katrina case. "These plaintiffs—and any others alleging injury by climatic phenomena—would have standing to assert a damages claim against virtually every entity and individual on the planet, since each 'contributes' to global concentrations of carbon dioxide."

In other words, the courts would become a venue for a carbon war of all against all. Not only might businesses sue to shackle their competitors—could we sue the New York Times for deforestation?—but judges would decide the remedies against specific defendants. In practice this would mean ad hoc command-and-control regulation against any industries that happen to catch the green lobby's eye.

Carbon litigation without legislation is one more way to harm the economy, and the rule of law. We hope the Fifth Circuit will have the good sense to deflect this damaging legal theory before it crash-lands at the Supreme Court.

from the Wall Street Journal, 2010-Jan-2, p.A11, by Orrin G. Hatch, J. Kenneth Blackwell and Kenneth A. Klukowski:

Why the Health-Care Bills Are Unconstitutional
If the government can mandate the purchase of insurance, it can do anything.

President Obama's health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.

Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.

In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.

Some have argued that Congress may pass any legislation that it believes will serve the "general welfare." Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.

A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.

The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance.

This hardly exhausts the list of constitutional problems with this legislation, which would take the federal government into uncharted political and legal territory. Analysts, scholars and litigators are just beginning to examine the issues we have raised and other issues that may well lead to future litigation.

America's founders intended the federal government to have limited powers and that the states have an independent sovereign place in our system of government. The Obama/Reid/Pelosi legislation to take control of the American health-care system is the most sweeping and intrusive federal program ever devised. If the federal government can do this, then it can do anything, and the limits on government power that our liberty requires will be more myth than reality.

Mr. Hatch, a Republican senator from Utah, is a former chairman of the Senate Judiciary Committee. Mr. Blackwell is a senior fellow with the Family Research Council and a professor at Liberty University School of Law. Mr. Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.

from the Heritage Foundation, 2009-Dec-9, by Randy Barnett, Nathaniel Stewart and Todd F. Gaziano:

from the Washington Examiner, 2010-Jan-6:

Dems iron out Obamacare in secret

Writing in The Federalist Papers during the debates on adoption of the U.S. Constitution in 1787, Alexander Hamilton confidently proclaimed that "two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third."

Well, Mr. Hamilton, meet Mr. Reid and Ms. Pelosi: The Senate majority leader and House speaker, respectively, are attempting, in a display of political arrogance unmatched in this nation's history, to do almost exactly what Hamilton said Americans would never tolerate. They are inventing "artificial distinctions and syllogistic subtleties" of legislative procedure in order to force passage of a proposal favored by a minority and opposed by a large majority of the people.

The proposal in question, of course, is Obamacare, the government-run health care system that will interpose federal bureaucrats between patients and doctors, while putting one-sixth of the national economy under the thumb of Washington politicians. According to Rasmussen Reports' weekly surveys of likely voters, opposition to Obamacare during the past year has ranged from 52 percent to as much as 58 percent of respondents, with support bouncing around 38 percent to 42 percent.

If not quite precisely the same as Hamilton's 66 percent to 33 percent equation, Rasmussen's numbers are in the same ballpark, especially considering the intensity of opposing views. Fully 81 percent of Republicans oppose Obamacare, while 73 percent of Democrats favor it. Significantly, 50 percent of independents oppose Obamacare and 31 percent favor it.

Reid and Pelosi are meeting privately with each other and with President Obama to work out differences between their respective chambers' versions of Obamacare. They are thus ignoring the long-standing requirement that a bipartisan conference committee with representatives from the Senate and House meet in public to iron out such differences, and that on-the-record votes be taken in both chambers on final passage of the committee's report. Once Reid and Pelosi agree on a final bill, they presumably will conduct a pro forma conference vote to rubber-stamp their agreement.

Obama, Reid and Pelosi fear the traditional conference committee process will encourage yet more Americans to decide they don't want either proposal. All three have forgotten Obama's promise of more than a year ago that "we'll have the negotiations televised on C-SPAN, so that people can see who is making arguments on behalf of their constituents." C-SPAN's Brian Lamb said just last week that his network "will commit the necessary resources" to cover "the critical stage of reconciliation between the chambers." Unfortunately, it appears that the more critical the stage, the more likely Obama, Reid and Pelosi are to go behind closed doors.

from the Wall Street Journal, 2010-Jan-6:

The Tom DeLay Democrats
So much for the President's pledge of C-Span transparency.

Rehabilitating Tom DeLay's reputation always seemed hopeless, or so we thought—but then again, President Obama ran on hope. Against the odds Democrats are making the former GOP Majority Leader look better by comparison as they bypass the ordinary institutions of deliberative democracy in the final sprint to pass ObamaCare.

Instead of appointing a formal conference committee to reconcile the House and Senate health bills, a handful of Democratic leaders will now negotiate in secret by themselves. Later this month, presumably white smoke will rise from the Capitol Dome, and then Nancy Pelosi, Harry Reid and the college of Democratic cardinals will unveil their miracle. The new bill will then be rushed through both chambers with little public scrutiny or even the chance for the Members to understand what they're passing.

Evading conference has become standard operating procedure in this Congress, though you might think they'd allow for the more open and thoughtful process on what Mr. Obama has called "the most important piece of social legislation since the Social Security Act passed in the 1930s and the most important reform of our health-care system since Medicare passed in the 1960s."

This black-ops mission ought to be a particular embarrassment for Mr. Obama, given that he campaigned on transparent government. At a January 2008 debate he said that a health-care overhaul would not be negotiated "behind closed doors, but bringing all parties together, and broadcasting those negotiations on C-Span so the American people can see what the choices are."

The C-Span pledge became a signature of his political pitch. During a riff at the San Francisco Chronicle about "accountability," he added that "I would not underestimate the degree to which shame is a healthy emotion and that you can shame Congress into doing the right thing if people know what's going on."

Apparently this Congress knows no shame. In a recent letter to Congressional leaders, C-Span president Brian Lamb committed his network to airing "all important negotiations," which if allowed would give "the public full access, through television, to legislation that will affect the lives of every single American." No word yet from the White House.

At a press conference in December, even Mrs. Pelosi said that "we would like to see a full conference." One reason she mentioned was that "there is a great deal of work involved in reviewing a bill and seeing what all the ramifications are of it," though her real motive at the time was that a conference seemed like a chance to drag the bill closer to the House version.

With public support collapsing, however, Democrats now think the right bill is any bill—and soon. Democrats know that a conference forces the majority party to cast votes on awkward motions and would give the Republicans who have been shut out for months a chance to participate. This sunlight, and the resulting public attention, might scare off wavering Democrats and defeat the bill. Ethics rules the Democrats passed in 2007 also make it harder to "airdrop" into conference reports the extra bribes they will no doubt add to grease the way for final passage.

Democrats howled at the strong-arm tactics Mr. DeLay used to pass Medicare drug coverage in 2003, and so did we. But they've managed to create an even more destructive bill, and their tactics are that much worse. We can't even begin to imagine the uproar if the Republicans had tried to privatize Social Security with such contempt for the democratic process and public opinion.

from the Wall Street Journal, 2010-Jan-19:

Predators and the Constitution
The feds usurp another area of state law.

Sex offenders are the least sympathetic of legal plaintiffs. Still, we were dismayed last week to see so many Supreme Court Justices during oral arguments apparently willing to let the federal government take over an area of law governing criminals that the Constitution grants to the states.

The question in U.S. v. Comstock is whether sex offenders who have already completed their federal criminal sentences may then see their incarceration extended through a process of "civil commitment" by the federal government. The law in question, the 2006 Adam Walsh Child Protection Act, allows the Attorney General to certify a person as a danger to the population and keep him in federal custody. The law tramples on the traditional power of states to protect public health and safety.

At oral argument, Solicitor General Elena Kagan argued that federal authority comes from its responsibility to maintain the criminal justice system, and that Congress may make all laws that are "necessary and proper" to execute its other Constitutionally vested powers. But civil commitment and criminal incarceration are different realms of enforcement: Those who have already served their legally prescribed sentences ought no longer be within reach of federal authorities.

The implications go well beyond sex offenders. To do as the Obama Administration asks would be to grant the federal government broad power in the criminal context. In the case of Graydon Comstock, who had been sentenced to three years in jail for purchasing child pornography, the Fourth Circuit Court of Appeals ruled that Congress lacked Constitutional authority to recommit him after he had done his federal time.

If the Supreme Court reverses the lower court's decision, it will sanction the notion that nearly any appealing idea may be justified as necessary and proper. In other countries, loose detention laws give wide latitude to authorities to lock up any number of people who "threaten the public safety," including political prisoners. Maybe next the feds could force everyone in America to buy health insurance.

The lone apparent critic was Justice Antonin Scalia, who pointed out to Ms. Kagan that the Necessary and Proper Clause was intended only to augment powers the federal government is explicitly given by the Constitution, and federal criminal authority ends when a criminal sentence does.

"The federal criminal proceeding is terminated. The individual is released. You could say it's necessary for the good of society, but that's not what the federal government is charged with." He added, "There is no constitutional power on the part of the federal government to protect society from sexual predators." Twenty states already have their own civil commitment laws.

The Rehnquist Court made important strides in re-establishing state rights, and we shall see if the Roberts Court expands on that legacy. If Graydon Comstock's three year sentence for child pornography is inappropriately brief, the answer is not for the federal government to freelance constitutionally by imposing alternative incarceration. The answer is for voters to seek tougher criminal penalties for sex offenders.

from the Washington Times, 2009-Dec-16, by Jerry Seper:

Justice Department restrains lawyers in Panther probe
Rights panel subpoenas blocked

The Justice Department has told the federal attorneys who filed a civil complaint against the New Black Panther Party for disrupting a Philadelphia polling place last year not to cooperate with an investigation of the incident by the U.S. Commission on Civil Rights.

The commission last week subpoenaed at least two Justice Department lawyers and sought documents from the department to explain why the complaint was dismissed just as a federal judge was about to punish the New Black Panther Party and three of its members for intimidating voters.

Joseph H. Hunt, director of the Justice Department's Federal Programs Branch, ordered the lawyers' silence in a letter to the attorney for J. Christian Adams, the lead attorney for the department in the New Black Panther case. The letter said "well-established" and "lawful" Justice Department guidelines prohibited Mr. Adams' cooperation in the commission probe.

In the letter, Mr. Hunt said the Civil Rights Commission "possesses no authority to initiate criminal prosecution of anyone" and has the ability only to make referrals to the Justice Department recommending that a criminal case be opened. The commission does not have the authority to enforce subpoenas, he added.

Mr. Adams' attorney, Jim Miles of Lexington, S.C., had asked the Justice Department whether his client would be subject to prosecution if he declined to respond to a commission subpoena. Mr. Miles wrote that he thought Mr. Adams had a "statutory obligation superior to that imposed by the Department of Justice" and that his refusal to cooperate might subject him to imprisonment or contempt charges.

In response, Mr. Hunt said, "There is no reasonable likelihood of imprisonment" for Mr. Adams because "the Department of Justice itself has instructed your client not to provide any information (either via testimony or documents) to the commission."

Mr. Hunt said the Justice Department thinks that federal agencies should cooperate fully with the commission so it can carry out its duties. But he added that the department needed more time to determine what could be provided, given the extent of the commission's request.

"We are, after all, dealing with information that belongs to the Department of Justice, not to any individual (current or former) departmental official or employee," he said.

Mr. Hunt also said Mr. Adams would place himself in jeopardy "in a manner that would violate the lawful regulations by which he is obliged to abide" if he disregarded the department's decision.

Mr. Miles, a former South Carolina secretary of state, told The Washington Times that he did not think the commission's subpoena "would be subjugated to some internal procedural personnel rule" at the Justice Department.

from the New York Times, 2010-Jan-11, printed 2010-Jan-12, p.A18, by Ray Rivera:

Robbed, Then Scared; Armed, Then Arrested

The night the robbers shoved their way in, Jason Baez lay on the living room floor, terrified. He worried for his children, asleep in their bedroom; for his wife, prostrate next to him; and for himself as two men brandished guns and a third accomplice, a woman, lashed Mr. Baez and his wife with duct tape and electrical cord.

His wife, Marlene Baez, was too angry to be scared. She cursed at the intruders until one of them finally said, “Man, shut that woman up!”

It was Sept. 28, 2006, the start of personal and financial disaster for the couple.

Jason and Marlene had grown up blocks apart. They harbored grade school crushes on each other before they even knew what dating was.

Now, after nearly a dozen years of marriage, they were bound on the hard wooden floor of their East 101st Street apartment in Manhattan, wearing little more than T-shirts and underwear as the invaders tore through every nook looking for valuables.

If there was a bright note, it was that their older daughter was at her grandmother's, and that their two younger children, who usually woke at the slightest sound, slept through the half-hour ordeal.

The robbers took a video recorder, jewelry, wallets and other items. But more importantly, they stole the Baezes' sense of well-being. In the days that followed, they bought a hallway security camera and sat focused on it as if it were a Hollywood thriller. At night they lay awake startled by ordinary building creaks, remembering the robbers' parting words: “Don't call the police or we'll come back and kill you” — advice they had ignored.

“You'd hear any little noise and you'd think that's them again,” said Ms. Baez, 31.

“Everyone was a suspect to us,” said Mr. Baez, 32.

Mr. Baez was so concerned, he bought a gun from a street dealer for $50, not even sure what he would do with it. And on the authorities' advice, the family moved away until the perpetrators could be caught. They rented a $1,600-a-month apartment in Jersey City, but were still responsible for the $745 monthly payments on their rent-stabilized apartment in Manhattan. By the time they returned, more than a year later, they were more than $10,000 in arrears.

Mr. Baez made $1,360 a month as a building porter. Ms. Baez was unemployed until a few months ago, when she found a job as a pharmacy cashier.

They got by, but struggled to catch up on the back rent. In April, the landlord began eviction proceedings.

The family sought help from the Lenox Hill Neighborhood House, a member agency of the Federation of Protestant Welfare Agencies, one of seven beneficiaries of The New York Times Neediest Cases Fund. With the group's help, the family obtained a $2,875.44 loan from the city's Human Resources Administration; a $2,000 loan from the Bridge Fund of New York, which works to prevent homelessness; a $1,490.12 grant from the Community Services Society; a $745.06 grant from Catholic Charities Archdiocese of New York; a federal emergency housing grant for $745.06; and a Federation grant for $745.06. Catholic Charities and the Community Services Society are also Neediest Cases beneficiaries.

This year, for the first time since the robbery, they had a Christmas tree. The Federation of Protestant Welfare Agencies delivered presents for the children.

Mr. Baez, meanwhile, is waiting to testify against one of the men in the home invasion case; the other is already in prison on an unrelated case. The woman was convicted in the home invasion last year.

It would have been a comforting end. But five months after the robbery, as Mr. Baez was visiting their Manhattan apartment to collect the mail, a police officer stopped him in the lobby and frisked him, he said. Finding nothing, the officer asked him if he had any drugs or weapons on him. Nervous, he decided to confess: “I just got home-invaded in September and I have a weapon for my protection,” Mr. Baez recalled telling the officer.

He was arrested, and despite having no criminal record, he faced up to three and a half years in prison. Prosecutors offered him a deal of one year if he pleaded guilty, and he accepted. He is to be sentenced Jan. 27.

“We were afraid to fight it,” Ms. Baez said. “We couldn't be without him for three and a half years.”

from the Telegraph of London, 2009-Jul-25, by Ben Leach and David Barrett:

Man held after confronting gang at home

A businessman was held on suspicion of attempted murder after confronting a gang of youths who allegedly threatened to kill his wife and attacked his stepson outside their home.

Colin Philpott was roused from bed and, still barefoot, challenged the group as his stepson, Alex, was battered in the front garden of the family's £500,000 property.

In the scuffle which followed, one of the youths, named locally as Josh Hasler, was stabbed a number of times and collapsed in the street. Police were called, leading to the arrest of Mr Philpott and five of the youths, aged 16 and 17.

The incident took place in an estate in Crowthorne, Berks, which residents said had been plagued by problems with drunken, rowdy teenagers from outside the area who congregate at a nearby park.

Mr Philpott's wife, Susanne, said she confronted the gang on Friday night after her husband's van was damaged.

“It was all so very surreal and scary. You never expect this kind of violence to happen in your neighbourhood, let alone on your doorstep,” said Mrs Philpott, a training consultant.

“When the police arrived and arrested Colin, I was gobsmacked. It was heartbreaking to see him handcuffed and carted off like a common criminal – he is a hardworking, honest family man.

“Any action taken by my husband was as a result of a desire to protect his family and loved ones, and to defend his property.”

Mrs Philpott said her neighbourhood had recently experienced problems with drunken behaviour involving youths.

She said she and her son left their home after they heard a bang. She added: “We saw two young guys outside our house. When we saw a big dent in my husband's van, Alex asked them if they had done it. They denied it and disappeared off around the corner.

“They returned 15 minutes later – with three others – and were all visibly drunk.

“When they started shouting outside the house, we came out again and this time I took a digital camera with me and told them that if they vandalised anything else, I'd take pictures as evidence.

“It was then that one particularly drunk and rowdy teenager threatened me. He said that if I took a picture, he would kill me and burn down my house.

“I was terrified by his words and when Alex tried to calm him down, the other four got worked up and the gang attacked him.

“He ended up on the ground with all five of those yobs on him, kicking him in the head and stomach.

“I was so frightened for him that I screamed for Colin, who until this point had been in bed. He came running out – still barefoot and half asleep – and saw the mess that Alex was in.

“In the blink of an eye, the lads attacked Colin and I saw one stumble into the road as Colin screamed for me to call the police and ambulance service.”

Mrs Philpott's 25-year-old son was treated in hospital for a broken nose and concussion.

The 16-year-old boy who was stabbed five times in the chest was said to be in a stable condition at Royal Berkshire Hospital.

It was believed a letter opener may have been involved in the incident. Police arrested Mr Philpott, 57, who runs an escalator cleaning company, on suspicion of attempted murder. He was held in custody.

Mrs Philpott, 51, said the tree-lined road where the family lives had been blighted by unruly teenagers attacking cars and pulling up plants and flowers from gardens for several months.

Earlier this week, Mr Philpott's Jaguar S-type car was smeared with hair gel while it was parked in the driveway.

Stephen Webb, a neighbour, said: “They do get a lot of drinking and trouble down that end of the road.” Yesterday, police installed a panic alarm at the Philpotts' five-bedroom home in case they were targeted again.

A spokesman for Thames Valley Police said that three 17-year-old and two 16-year-old boys had been arrested on suspicion of assault and criminal damage and were in custody.

Police added last night that Mr Philpott had been released on bail.

from the Times of London, 2009-Dec-15, by Adam Sherwin:

Jail for `courageous' Munir Hussain who beat intruder with cricket bat

A businessman who fought off knife-wielding thugs after his family were threatened has been jailed for 30 months.

The case prompted renewed debate over the level of force that house-holders can use against raiders.

Munir Hussain, chairman of the Asian Business Council, was praised by a judge for his “courage” in defending his wife and three children from an attack — but then jailed for the violence of his response. One of his attackers was spared a jail sentence.

The incident occurred when the Hussain family returned from their mosque during Ramadan to find three intruders wearing balaclavas in their home. Hussain was told that he would be killed. His family's hands were tied behind their backs and they were forced to crawl from room to room.Hussain, 53, made an escape after throwing a coffee table and enlisted his brother Tokeer, 35, in chasing the offenders down the street in High Wycombe, Buckinghamshire, bringing one of them to the ground.

What followed was described in Reading Crown Court as self-defence that went too far. Walid Salem, one of the intruders, suffered a permanent brain injury after he was struck with a cricket bat so hard that it broke into three pieces. Neighbours saw several men beating Salem with weapons, including a metal pole.

Munir Hussain is said to feel that he let down his wife, Shaheen Begum, sons Awais, 21, Samad, 15, and 18-year-old daughter Arooj, by failing to defend them against Salem and his gang. Mrs Begum had told the court that she feared the raiders had killed her youngest son. She said: “They were hitting my husband. When I asked them to stop or looked up they started hitting him again. They told us to lie face down and not speak, or they would kill us. It was very terrifying.”

Salem was the only intruder caught after the incident in September last year, but his injuries meant that he was not fit to plead after being charged with false imprisonment. Salem, who has 50 past convictions, was given a two-year supervision order in September this year. He is now in custody awaiting trial for an alleged credit card fraud.

Munir and Tokeer Hussain, described as family men at the heart of the local community, were found guilty of causing grievous bodily harm with intent this year. The prosecution alleged that two other men also took part in the “revenge attack”. Judge John Reddihough gave a 30-month sentence to Munir and jailed Tokeer for 39 months.

Munir Hussain, who trained as an engineer, came to Britain in 1964 and founded a company that employs nine people and with a turnover of £2.4 million. He is a former chairman of the Wycombe Race Equality Council.

Judge Reddihough said that Hussain's family had been subject to a “serious and wicked offence” and praised the bravery of his teenage son, who escaped to raise the alarm. He also noted the “courage” of Munir Hussain, but said that he carried out a “dreadful, violent attack” on Salem as he lay defenceless.

The judge told them: “If persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting justice take its course, then the rule of law and our system of criminal justice, which are the hallmarks of a civilised society, would collapse.” Michael Wolkind, QC, defending Munir Hussain, promised to appeal.

He said that the case had similarities to that of Tony Martin, jailed in 2000 for shooting dead a teenage burglar. Martin's murder conviction was reduced on appeal to manslaughter and his sentence to five years. In a statement, the family said: “We are devastated. We hope that justice will be served.”

from the Wall Street Journal, 2010-Jan-14, by Dorothy Rabinowitz:

Martha Coakley's Convictions
The role played by the U.S. Senate candidate in a notorious sex case raises questions about her judgment.

The story of the Amiraults of Massachusetts, and of the prosecution that had turned the lives of this thriving American family to dust, was well known to the world by the year 2001. It was well known, especially, to District Attorney Martha Coakley, who had by then arrived to take a final, conspicuous, role in a case so notorious as to assure that the Amiraults' name would be known around the globe.

The Amiraults were a busy, confident trio, grateful in the way of people who have found success after a life of hardship. Violet had reared her son Gerald and daughter Cheryl with help from welfare, and then set out to educate herself. The result was the triumph of her life—the Fells Acres school—whose every detail Violet scrutinized relentlessly. Not for nothing was the pre-school deemed by far the best in the area, with a long waiting list for admission.

All of it would end in 1984, with accusations of sexual assault and an ever-growing list of parents signing their children on to the case. Newspaper and television reports blared a sensational story about a female school principal, in her 60s, who had daily terrorized and sexually assaulted the pupils in her care, using sharp objects as her weapon. So too had Violet's daughter Cheryl, a 28-year old teacher at the school.

But from the beginning, prosecutors cast Gerald as chief predator—his gender qualifying him, in their view, as the best choice for the role. It was that role, the man in the family, that would determine his sentence, his treatment, and, to the end, his prosecution-inspired image as a pervert too dangerous to go free.

The accusations against the Amiraults might well rank as the most astounding ever to be credited in an American courtroom, but for the fact that roughly the same charges were brought by eager prosecutors chasing a similar headline—making cases all across the country in the 1980s. Those which the Amiraults' prosecutors brought had nevertheless, unforgettable features: so much testimony, so madly preposterous, and so solemnly put forth by the state. The testimony had been extracted from children, cajoled and led by tireless interrogators.

Gerald, it was alleged, had plunged a wide-blade butcher knife into the rectum of a 4-year-old boy, which he then had trouble removing. When a teacher in the school saw him in action with the knife, she asked him what he was doing, and then told him not to do it again, a child said. On this testimony, Gerald was convicted of a rape which had, miraculously, left no mark or other injury. Violet had tied a boy to a tree in front of the school one bright afternoon, in full view of everyone, and had assaulted him anally with a stick, and then with "a magic wand." She would be convicted of these charges. Cheryl had cut the leg off a squirrel.

Other than such testimony, the prosecutors had no shred of physical or other proof that could remotely pass as evidence of abuse. But they did have the power of their challenge to jurors: Convict the Amiraults to make sure the battle against child abuse went forward. Convict, so as not to reject the children who had bravely come forward with charges.

Gerald was sent to prison for 30 to 40 years, his mother and sister sentenced to eight to 20 years. The prosecutors celebrated what they called, at the time "a model, multidisciplinary prosecution." Gerald's wife, Patricia, and their three children—the family unfailingly devoted to him—went on with their lives. They spoke to him nightly and cherished such hope as they could find, that he would be restored to them.

Hope arrived in 1995, when Judge Robert Barton ordered a new trial for the women. Violet, now 72, and Cheryl had been imprisoned eight years. This toughest of judges, appalled as he came to know the facts of the case, ordered the women released at once. Judge Barton—known as Black Bart for the long sentences he gave criminals—did not thereafter trouble to conceal his contempt for the prosecutors. They would, he warned, do all in their power to hold on to Gerald, a prediction to prove altogether accurate.

No less outraged, Superior Court Judge Isaac Borenstein presided over a widely publicized hearings into the case resulting in findings that all the children's testimony was tainted. He said that "Every trick in the book had been used to get the children to say what the investigators wanted." The Massachusetts Lawyers Weekly—which had never in its 27 year history taken an editorial position on a case—published a scathing one directed at the prosecutors "who seemed unwilling to admit they might have sent innocent people to jail for crimes that had never occurred."

It was clear, when Martha Coakley took over as the new Middlesex County district attorney in 1999, that public opinion was running sharply against the prosecutors in the case. Violet Amirault was now gone. Ill and penniless after her release, she had been hounded to the end by prosecutors who succeeded in getting the Supreme Judicial Court to void the women's reversals of conviction. She lay waiting all the last days of her life, suitcase packed, for the expected court order to send her back to prison. Violet would die of cancer before any order came in September 1997.

That left Cheryl alone, facing rearrest. In the face of the increasing furor surrounding the case, Ms. Coakley agreed to revise and revoke her sentence to time served—but certain things had to be clear, she told the press. Cheryl's case, and that of Gerald, she explained, had nothing to do with one another—a startling proposition given the horrific abuse charges, identical in nature, of which all three of the Amiraults had been convicted.

No matter: When women were involved in such cases, the district attorney explained, it was usually because of the presence of "a primary male offender." According to Ms. Coakley's scenario, it was Gerald who had dragged his mother and sister along. Every statement she made now about Gerald reflected the same view, and the determination that he never go free. No one better exemplified the mindset and will of the prosecutors who originally had brought this case.

Before agreeing to revise Cheryl's sentence to time served, Ms. Coakley asked the Amiraults' attorney, James Sultan, to pledge—in exchange—that he would stop representing Gerald and undertake no further legal action on his behalf. She had evidently concluded that with Sultan gone—Sultan, whose mastery of the case was complete—any further effort by Gerald to win freedom would be doomed. Mr. Sultan, of course, refused.

In 2000, the Massachusetts Governor's Board of Pardons and Paroles met to consider a commutation of Gerald's sentence. After nine months of investigation, the board, reputed to be the toughest in the country, voted 5-0, with one abstention, to commute his sentence. Still more newsworthy was an added statement, signed by a majority of the board, which pointed to the lack of evidence against the Amiraults, and the "extraordinary if not bizarre allegations" on which they had been convicted.

Editorials in every major and minor paper in the state applauded the Board's findings. District Attorney Coakley was not idle either, and quickly set about organizing the parents and children in the case, bringing them to meetings with Acting Gov. Jane Swift, to persuade her to reject the board's ruling. Ms. Coakley also worked the press, setting up a special interview so that the now adult accusers could tell reporters, once more, of the tortures they had suffered at the hands of the Amiraults, and of their panic at the prospect of Gerald going free.

On Feb. 20, 2002, six months after the Board of Pardons issued its findings, the governor denied Gerald's commutation.

Gerald Amirault spent nearly two years more in prison before being granted parole in 2004. He would be released, with conditions not quite approximating that of a free man. He was declared a level three sex offender—among the consequences of his refusal, like that of his mother and sister, to "take responsibility" by confessing his crimes. He is required to wear, at all times, an electronic tracking device; to report, in a notebook, each time he leaves the house and returns; to obey a curfew confining him to his home between 11:30 p.m. and 6 a.m. He may not travel at all through certain areas (presumably those where his alleged victims live). He can, under these circumstances, find no regular employment.

The Amirault family is nonetheless grateful that they are together again.

Attorney General Martha Coakley—who had proven so dedicated a representative of the system that had brought the Amirault family to ruin, and who had fought so relentlessly to preserve their case—has recently expressed her view of this episode. Questioned about the Amiraults in the course of her current race for the U.S. Senate, she told reporters of her firm belief that the evidence against the Amiraults was "formidable" and that she was entirely convinced "those children were abused at day care center by the three defendants."

What does this say about her candidacy? (Ms. Coakley declined to be interviewed.) If the current attorney general of Massachusetts actually believes, as no serious citizen does, the preposterous charges that caused the Amiraults to be thrown into prison—the butcher knife rape with no blood, the public tree-tying episode, the mutilated squirrel and the rest—that is powerful testimony to the mind and capacities of this aspirant to a Senate seat. It is little short of wonderful to hear now of Ms. Coakley's concern for the rights of terror suspects at Guantanamo—her urgent call for the protection of the right to the presumption of innocence.

If the sound of ghostly laughter is heard in Massachusetts these days as this campaign rolls on, with Martha Coakley self-portrayed as the guardian of justice and civil liberties, there is good reason.

Ms. Rabinowitz, a member of the Journal's editorial board, is the author of "No Crueler Tyrannies: Accusations, False Witness And Other Terrors Our Times" (Free Press, 2003).

from the Boston Globe, 2010-Jan-6, by Michael Rezendes:

Some saw Coakley as lax on '05 rape case
AG defends steps in long process

In October 2005, a Somerville police officer living in Melrose raped his 23-month-old niece with a hot object, most likely a curling iron.

Keith Winfield, then 31, told police he was alone with the toddler that day and made additional statements that would ultimately be used to convict him.

But in the aftermath of the crime, a Middlesex County grand jury overseen by Martha Coakley, then the district attorney, investigated without taking action.

It was only after the toddler's mother filed applications for criminal complaints that Coakley won grand jury indictments charging rape and assault and battery.

Even then, nearly 10 months after the crime, Coakley's office recommended that Winfield be released on personal recognizance, with no cash bail. He remained free until December 2007, when Coakley's successor as district attorney won a conviction and two life terms.

Coakley, now the Democratic candidate for US Senate, has made much of her record prosecuting crimes against children, and says her office handled this investigation appropriately. But the case stands out as one in which she drew criticism for not being aggressive enough. Indeed, the case gave rise to Coakley's last competitive election.

Larry Frisoli, a Cambridge attorney who had represented the family of Jeffrey Curley, a 10-year-old Cambridge boy murdered by sexual predators in an infamous 1997 case, was so angered by Coakley's handling of the Winfield investigation that he ran against her as a Republican for attorney general in 2006, ultimately unsuccessfully.

“That was the principal reason Larry decided to run,'' said Frank Frisoli, Larry's brother and former law partner. “He clearly felt that procedure was not being followed.''

Larry Frisoli died of kidney and liver failure last year.

In a recent interview, Coakley said her office acted appropriately at every turn, adding that her office fielded 900 complaints of sexual and physical child abuse each year. She asserted that it was not unusual for prosecutors to require more than one grand jury before obtaining indictments, especially in cases such as Winfield's, in which there is only circumstantial evidence and the victim is deemed too young to testify.

“I think the jury's conviction is sound and will be upheld on appeal,'' Coakley said.

Coakley pointed out that Winfield had no prior convictions, had deep roots in his community, and had appeared voluntarily at his arraignment after a 10-month investigation, leaving her office with scant reason to ask for cash bail and little reason to believe that a judge would order it.

She insisted that Winfield's status as a law enforcement officer had no bearing on her decisions. “The fact that he was a Somerville police officer was irrelevant,'' she said.

Coakley's prosecutors made the recommendation that Winfield be released with no cash bail, even though an investigator with the Department of Children and Families, working in the weeks immediately following the rape, found that Winfield had been suspended from his job with the Somerville police for disciplinary reasons and had lied about it.

In addition, the investigator found that Winfield had concealed the fact that he had been evaluated at Melrose-Wakefield Hospital for stress less than two weeks before the rape.

Indeed, before Winfield's trial, prosecutors sought to admit evidence that Winfield, in the days leading up to the rape, was treated for a substance abuse problem and had threatened to kill himself by holding a gun to his head, “evincing great emotional stress and the strong possibility that [he] would harm himself or others.''

Although high cash bail is intended primarily as a means to ensure that the accused appear for court dates, judicial guidelines say it can be imposed in cases because of “the nature and circumstances of the offense'' or the potential sentence a defendant faces. Each of the rape charges on which Winfield was indicted carried a potential life sentence.

John Swomley, a defense lawyer who has represented clients prosecuted by Coakley, said he found her decision to recommend that Winfield be released on personal recognizance unusual.

“Given the evidence it appears they had, I can't imagine them not asking for cash bail,'' he said.

Family members of the toddler remain troubled by Coakley's recommendation that Winfield be allowed to remain free.

“Why was he able to be two years out of jail? Why is that?'' said one family member. “We ask that question all the time.''

The Globe is withholding the names of the family members because naming them would indirectly identify the victim and the Globe does not publish the names of sexual abuse victims.

But Robert L. Sheketoff - Winfield's attorney in his appeal, which is still pending - said the decision by Coakley's office to allow Winfield to remain free on personal recognizance was appropriate.

“Bail is not supposed to be used as a means to keep someone locked up,'' he said.

The Winfield case began Oct. 13, 2005, after a day when Winfield and his wife were baby sitting their niece, along with their own two children.

That afternoon, when the toddler's grandmother stopped by to pick her up, she found the toddler crying, and the child refused to walk. After taking the toddler home, the grandmother changed her diaper and noticed what she could only conclude was a severe diaper rash, according to a narrative of the case detailed in court documents.

When the toddler's mother returned from work, the girl was still crying and in obvious pain. And when the mother changed her diaper, she, too, noted that the area was very red.

By 11 p.m., when the toddler's mother once again changed her diaper, the redness had become alarming. “Her genital and anal area was bleeding, and her skin was peeling off,'' according to prosecutors.

The next morning, after her condition had worsened, the toddler's mother took her to a Somerville pediatrician who referred her to Children's Hospital and notified the Department of Social Services (now the Department of Families and Children), along with Melrose police. The toddler ultimately spent a month at Shriners Hospital for Children in Boston recovering from burns.

Three weeks after the rape, on Nov. 7, Winfield gave his interview to Melrose detectives, saying he was alone with the toddler for about an hour on the day of the crime. He also said, “I would have never, ever, ever, ever wanted to take on another child,'' a statement that was later used by prosecutors at trial to show that Winfield's commitment to care for his niece was an intolerable burden and, therefore, a motivation to harm her.

The following January, after neither Melrose police nor Coakley's office had taken any public action against Winfield, Frisoli wrote to an assistant district attorney saying that he and the toddler's mother planned to pursue charges on their own.

“I believe I already have enough evidence for the issuance of a complaint,'' Frisoli wrote, “and do not intend to allow them to go unprosecuted.''

In response, Coakley's office contacted Frisoli and assured him that the case would go before a grand jury. Yet, months later, after presenting testimony, Coakley's office decided that “additional time was needed to determine the legal sufficiency of the evidence'' and did not ask the grand jury to take action.

By that time, Frisoli had announced his plans to run against Coakley for attorney general. On July 10, he followed through with his promise to have the toddler's mother file applications for criminal complaints against Winfield and his wife. A magistrate's hearing was set for Aug. 1.

“To me, it was a ploy and a political stunt to promote his own race for attorney general,'' Coakley said in the interview. Coakley also said she believed Frisoli was “trying to have his cake and eat it, too,'' by accusing her of foot-dragging while knowing that if indictments were issued, he could claim credit for prompting her to take action.

Coakley's office presented the case to another grand jury, offering previously submitted testimony along with new evidence that included telephone records and information about Winfield's employment history.

In late July, that grand jury issued the two rape and two assault and battery indictments against Winfield and, on Aug. 1, the day the hearing on the applications for criminal complaints was to have taken place, Winfield was arraigned and released on personal recognizance.

Coakley said that her office did not ask for a dangerousness hearing - a proceeding in which prosecutors may request pretrial incarceration by arguing that the accused presents a danger to the community - because Winfield did not show any sign of being a repeat offender or sexual predator. It would take another 15 months and a new district attorney, Gerard T. Leone Jr., before Winfield was convicted and sentenced to prison. Winfield appeared voluntarily for trial, generally meeting the terms of his release.

Recently, the question of bail in child rape cases made local headlines when a Kingston man was accused of raping a 3-year-old girl while free on $10,000 cash bail, which was imposed after an earlier charge of breaking and entering and raping a 5-year-old girl. Prosecutors had recommended $200,000 cash bail after the first alleged rape, but a judge would not agree to it.

Following the Kingston incidents, state Representative Karyn E. Polito, a Shrewsbury Republican, filed legislation that would require prosecutors to request a dangerousness hearing in all child rape cases.

“What happened to this little girl is horrendous,'' said Polito, referring to Winfield's niece.

from New Scientist, 2010-Jan-22, by Jeff Hecht:

from the New York Times, 2010-Jan-14, p.A1, by Lizette Alvarez:

Meet Mikey, 8: U.S. Has Him on Watch List

The Transportation Security Administration, under scrutiny after last month's bombing attempt, has on its Web site a “mythbuster” that tries to reassure the public.

Myth: The No-Fly list includes an 8-year-old boy.

Buster: No 8-year-old is on a T.S.A. watch list.

“Meet Mikey Hicks,” said Najlah Feanny Hicks, introducing her 8-year-old son, a New Jersey Cub Scout and frequent traveler who has seldom boarded a plane without a hassle because he shares the name of a suspicious person. “It's not a myth.”

Michael Winston Hicks's mother initially sensed trouble when he was a baby and she could not get a seat for him on their flight to Florida at an airport kiosk; airline officials explained that his name “was on the list,” she recalled.

The first time he was patted down, at Newark Liberty International Airport, Mikey was 2. He cried.

After years of long delays and waits for supervisors at every airport ticket counter, this year's vacation to the Bahamas badly shook up the family. Mikey was frisked on the way there, then more aggressively on the way home.

“Up your arms, down your arms, up your crotch — someone is patting your 8-year-old down like he's a criminal,” Mrs. Hicks recounted. “A terrorist can blow his underwear up and they don't catch him. But my 8-year-old can't walk through security without being frisked.”

It is true that Mikey is not on the federal government's “no-fly” list, which includes about 2,500 people, less than 10 percent of them from the United States. But his name appears to be among some 13,500 on the larger “selectee” list, which sets off a high level of security screening.

At some point, someone named Michael Hicks made the Department of Homeland Security suspicious, and little Mikey is still paying the price. (His father, also named Michael Hicks, was stopped for the first time on the Bahamas trip.)

Both lists are maintained by the Terrorist Screening Center, which includes the Federal Bureau of Investigation. They are given to the Transportation Security Administration, which in turn sends them to the airlines.

A spokesman for the T.S.A., James Fotenos, said that as a rule, “there are no children on the no-fly or selectee lists,” but would not comment on Mikey's situation specifically.

For every person on the lists, hundreds of others may get caught up simply because they share the same name; a quick scan through a national phone directory unearthed 1,600 Michael Hickses. Over the past three years, 81,793 frustrated travelers have formally asked that they be struck from the watch list through the Department of Homeland Security; more than 25,000 of their cases are still pending. Others have taken more drastic measures.

Mario Labbé, a frequent-flying Canadian record-company executive, started having problems at airports shortly after Sept. 11, 2001, with lengthy delays at checkpoints and mysterious questions about Japan. By 2005, he stopped flying to the United States from Canada, instead meeting American clients in France. Then a forced rerouting to Miami in 2008 led to six hours of questions.

“What's the name of your mother? Your father? When were you last in Japan?” Mr. Labbé recalled being asked. “Always the same questions in different order. And sometimes, it's quite aggressive, not funny at all.”

Fed up, in the summer of 2008, he changed his name to François Mario Labbé. The problem vanished.

Several Web sites, including the T.S.A.'s own blog, are rife with tales of misidentification and strategies for solving them. Some travelers purposely misspell their own names when buying tickets, apparently enough to fool the system. Even the late Senator Edward M. Kennedy once found himself on a list.

“We can't just throw a bunch of names on these lists and call it security,” said Representative William J. Pascrell Jr., a New Jersey Democrat. “If we can't get an 8-year-old off the list, the whole list becomes suspect.”

Mr. Fotenos, the T.S.A. spokesman, promised improvements in a few months, as the agency's Secure Flight Program takes full effect. Under the new system, airlines will collect every passenger's birth date and gender, along with their names. The T.S.A. will cross-check all that with the watch lists. Previously, the airlines cross-checked the lists themselves, using only the names.

Certainly, Mikey's date of birth, less than a month before 9/11, should prevent him from being mistaken as a terrorist.

A third grader at a parochial school in Clifton, N.J., Mikey recites the drill like the world-weary traveler he is. Leave early for the airport, always with his passport. Try to get a boarding pass at the counter. This will send up a flag. The ticket agent, peering down at tiny bespectacled Mikey, will apologize or roll her eyes, and call for a supervisor. The supervisor, after a phone call — or, more likely, a series of phone calls — will ultimately finagle him onto the plane. But the Hickses are typically the last to select seats and the last to board, which means they sometimes can't sit together.

Mrs. Hicks, a photojournalist who herself got Secret Service clearance to travel aboard Air Force II with then-Vice President Al Gore, anticipated additional chaos following the attempted underwear bombing. Before leaving for the Bahamas on Jan. 2, she reached out to Congressman Pascrell's office, which then enlisted a T.S.A. agent to meet the family at the airport. Even this did not prevent Mikey from an extra pat-down.

On the way home last Friday, Mikey's boarding pass showed four giant red S's at the airport in Nassau. “Oh, random screening,” Mrs. Hicks said. Mikey asked his mother not to worry and said he would use his tae kwon do — he has a junior black belt — if needed. Mrs. Hicks said she wanted to take pictures of her son being frisked but was told it was against the rules.

Mikey, who would rather talk about BMX bikes and his athletic trophies than airport security, remains perplexed about the “list” and the hurdles he must clear. “Why do they think a kid is a terrorist?” Mikey asked his mother at one point during the interview.

Mrs. Hicks said the family was amused by the mistake at first. But that amusement quickly turned to annoyance and anger. It should not take seven years to correct the problem, Mrs. Hicks said. She applied for redress in December when she first heard about the Department of Homeland Security's program.

“I understand the need for security,” she added. “But this is ridiculous. It's quite clear that he is 8 years old, and while he may have terroristic tendencies at home, he does not have those on a plane.”

from BBC News, 2009-Dec-18:

Suspected Somalia pirates freed by Dutch navy

A group of suspected Somali pirates detained on a Dutch warship has been released because no country has agreed to prosecute them.

A Dutch defence ministry statement said the European Union had decided that the 13 detainees had to be freed because it was impossible to bring charges.

The suspects were seized in the Indian Ocean two weeks ago after allegedly attempting to attack a cargo ship.

They were put back on their own speedboat with some food and fuel.

They had been on board the Dutch warship Evertsen since early December after they were tracked down following the alleged attack on the Antigua and Barbuda-flagged cargo ship MV BBC Togo failed.

Regret at release

The European Union naval force said ladders, grappling hooks, nine automatic weapons, grenades and other ammunition were found on board their skiffs.

"The European Union has tried in vain since their arrest to find a country which would agree to prosecute them," the defence ministry statement said.

"The defence ministry regrets that the European Union has not found a suitable solution," the statement added.

Although the EU had signed agreements with the Seychelles and Kenya to help press charges against suspected pirates, "the two countries indicated they did not want to prosecute the pirates", the ministry said.

Differences over laws concerning the arrest of pirates have hampered efforts to curtail piracy in the Gulf of Aden.

There has been just a handful of pirate prosecutions outside Africa.

Warships from around the world are patrolling the Indian Ocean to try to fend off attacks in some of the world's busiest shipping lanes.

Somalia has not had an effective government since 1991 and the lawlessness has spread from land to the water in recent years.

from the Daily Mail of London, 2009-Dec-21, by Graham Smith:

Priest outrages police by telling congregation: 'My advice to poor is to shoplift'

A clergyman has been criticised as 'highly irresponsible' after advising his congregation to shoplift following his Nativity sermon.

Father Tim Jones, 41, broke off from his traditional annual sermon yesterday to tell his flock that stealing from large chains is sometimes the best option for vulnerable people.

It is far better for people desperate during the recession to shoplift than turn to 'prostitution, mugging or burglary', he said.

The married father-of-two insisted his unusual advice did not break the Bible commandment 'Thou shalt not steal' - because God's love for the poor outweighs his love for the rich.

But the minister's controversial sermon at St Lawrence Church in York has been slammed by police, the British Retail Consortium and a local MP, who all say that no matter what the circumstances, shoplifting is an offence.

Delivering his festive lesson, Father Jones told the congregation: 'My advice, as a Christian priest, is to shoplift. I do not offer such advice because I think that stealing is a good thing, or because I think it is harmless, for it is neither.

'I would ask that they do not steal from small family businesses, but from large national businesses, knowing that the costs are ultimately passed on to the rest of us in the form of higher prices.

'I would ask them not to take any more than they need, for any longer than they need.

'I offer the advice with a heavy heart and wish society would recognise that bureaucratic ineptitude and systematic delay has created an invitation and incentive to crime for people struggling to cope.'

He added that he felt society had failed the needy, and said it was far better they shoplift than turn to more degrading or violent options such as prostitution, mugging or burglary.

Father Jones cited the example of an ex-prisoner who had been forced to live on less than £100, including a crisis loan, over six weeks after his release from jail.

He continued: 'My advice does not contradict the Bible's eighth commandment because God's love for the poor and despised outweighs the property rights of the rich.

'Let my words not be misrepresented as a simplistic call for people to shoplift. The observation that shoplifting is the best option that some people are left with is a grim indictment of who we are.

'Rather, this is a call for our society no longer to treat its most vulnerable people with indifference and contempt. Providing inadequate or clumsy social support is monumental, catastrophic folly.'

But a spokesman for North Yorkshire Police said: 'First and foremost, shoplifting is a criminal offence and to justify this course of action under any circumstances is highly irresponsible.

'Turning or returning to crime will only make matters worse, that is a guarantee. We recognise some people find themselves in difficult circumstances but support is readily available and must be sought.'

Local Tory MP Anne McIntosh, who has campaigned in Parliament for stronger sentences for shoplifters, admitted that there had been an 'over-commercialisation' of the festive period which encourages people to spend.

But she said: 'I cannot condone inciting anyone to commit a criminal offence, shoplifting is a crime against the whole local community and society.'

Richard Dodd, spokesman for the British Retail Consortium, said he was surprised that a priest was encouraging his congregation to steal.

'He's failing to appreciate that it's the job of our welfare system to deal with vulnerable people,' he said. 'That's how to deal with the vulnerable, not calling for them to steal from shops.'

Mr Dodd added: 'Stealing is wrong and it isn't less wrong to steal from a big retailer than it is to steal from a small retailer.

'I thought this was a central part of every religion.'

This isn't the first time Father Jones has courted controversy.

He hit the headlines in May 2008 when he protested against a shop stocking Playboy stationery aimed at youngsters. He tossed the items onto the floor complaining they were 'cynical and wicked'. The shop bowed to his one-man protest and agreed to stop stocking Playboy-branded merchandise.

from the Wall Street Journal, 2009-Oct-20, by James Freeman:

House Democrats Lock GOP Out of Committee Room
A bitter divide over Countrywide mortgage scandal.

Democratic staff for the House oversight committee informed their GOP counterparts today that the majority has changed the locks on the committee's hearing room. While Republicans previously enjoyed their own key to the room, they will now have to request access from Democrats. This followed a bitter partisan argument in which Republicans refused to take down a video from their website that contradicted Dem explanations about a closed-door meeting on the Countrywide VIP loan scandal.

As we reported last week, the committee was scheduled to meet on Thursday to mark up several minor pieces of legislation. Days before the meeting, California Republican Darrell Issa notified committee Chairman Edolphus Towns that Mr. Issa would call for a vote to subpoena Countrywide documents from Bank of America, which bought the failed subprime lender last year. Recall that, under the "Friends of Angelo" program, named for former Countrywide CEO Angelo Mozilo, Democratic Senators Chris Dodd and Kent Conrad received sweetheart deals on home mortgages. Mr. Issa wants to uncover the full story on Countrywide's effort to influence Washington policy makers.

Mr. Towns, a New York Democrat who also received mortgages from the unit that processed the VIP loans but claims he received no favors, has opposed such a subpoena. But can he count on his Democratic colleagues to vote it down? Perhaps Mr. Towns would rather not find out. Mr. Issa showed up for the scheduled 2 p.m. markup on Thursday hoping that a few Democrats would vote his way and allow the investigation to proceed. Then a strange thing happened: As Mr. Issa and the GOP members of the committee sat waiting for the meeting to begin, Democrats huddled in a back room without explanation. Thirty-five minutes later, the committee announced that the meeting had been postponed indefinitely.

A committee press release later claimed the postponement was "due to conflicts" with a markup occurring at the same time in the financial services committee. But Mr. Issa's staff videotaped several financial services members leaving the back-room gathering with Mr. Towns at the conclusion of the meeting. If members were there to confab with Chairman Towns, obviously they weren't at any finance committee markup -- suggesting the real "conflict" was between Democrats over whether to keep stonewalling the Countrywide matter. As for the Democrats' decision to change the locks today, Mr. Issa's spokesman Kurt Bardella says, "I guess we're getting some insight into what lengths they'll go to avoid addressing the Countrywide VIP issue."

More bad news for Mr. Towns: the Journal's editorial page reported on Saturday that committee Democrat Mike Quigley is ready to vote for a Countrywide subpoena. The committee is scheduled to meet again this Thursday. Will Mr. Towns cancel again if he doesn't have the votes to stonewall a Countrywide investigation?

from CNSNews.com, 2009-Oct-23, by Matt Cover:

from San Diego Gay and Lesbian News, 2009-Oct-30, by Margie M. Palmer:

President Barack Obama Takes Major Steps for People with HIV and AIDS
Signs Reauthorization of Ryan White CARE Act, Announces End of HIV Travel and Immigration Ban

(NEW YORK) — Today President Obama took two major steps on behalf of people living with HIV and AIDS. First, he signed into law a bill extending the Ryan White HIV/AIDS Treatment Extension Act, reauthorizing for another four years the critical programs that have helped provide care for more than half a million low-income people living with HIV and AIDS. Second, he announced the final regulation reversing our nation's prohibition on HIV-positive people entering the country for travel or immigration.

“We thank the President for taking these tremendous steps today on behalf of people with HIV and AIDS,” said Human Rights Campaign President Joe Solmonese. “Today's actions signal both to Americans and to the world that the United States is a nation that will care for those most in need at home and will no longer close the door to HIV-positive people abroad.”

For nearly twenty years, the Ryan White CARE Act has served those most in need, acting as a payer of last resort in the gaps left by Medicaid, Medicare and other public health insurance programs. This legislation has been a tremendous success, with more than half a million people having been served by the CARE Act programs to date.

The ban on HIV-positive visitors and immigrants was adopted through regulation over twenty years ago. Under that ban, HIV-positive foreign nationals were unable to enter the U.S. unless they obtained a special waiver, which was difficult to obtain and only allowed for short-term travel, and the vast majority were unable to obtain legal permanent residency.

The HIV travel and immigration ban will end following a 60-day waiting period that begins on Monday with the administration's publication of a new rule that removes HIV from the list of communicable diseases of public health significance for immigrants to the United States. The U.S. will join the vast majority of countries around the world that do not restrict the travel and immigration rights of people living with HIV.

“Today a discriminatory travel and immigration ban has gone the way of the dinosaur and we're glad it's finally extinct. It sure took too long to get here. We've now removed one more hurdle in our fight against AIDS, and it's long overdue for people living with HIV who battle against stigma and bigotry day in and day out,” said Senator John Kerry (D-MA).

Kerry, along with Senator Gordon Smith and Congresswoman Barbara Lee has worked tirelessly with gay rights organizations to repeal this ban.

“I believe that ending this policy is long overdue, and will lend greater credibility to U.S. foreign assistance efforts to fight the global HIV/AIDS epidemic,” said Lee (D-CA). Particularly, it will aid in combating the stigma and discrimination against people living with HIV, and further erode discriminatory travel and immigration policies in other countries.”

Lambda Legal, who has provided legal analysis and formal comments on numerous occasions urging the government to end the discriminatory ban, is pleased with the President's decision to lift the ban, noting that government should never be in the business of discriminating.

“We applaud the Obama Administration for its leadership in ending this kind of government sponsored discrimination against people living with HIV,” said Kevin Cathcart, Executive Director of Lambda Legal. “The 22-year ban was discriminatory, violated basic human rights, and could not be justified on public health grounds.

“U.S. policy will finally reflect the broad consensus among the scientific, medical and public health communities that admission of individuals living with HIV into the U.S. as visitors or immigrants does not present a threat to the public health of this country nor pose any danger to its citizens.”

Last year, Congress repealed the statutory language barring people with HIV [and Bush 43 signed it into law. -AMPP Ed.]. The Centers for Disease Control and Prevention (CDC) of the U.S. Department of Health and Human Services (HHS) announced the proposed rules late this summer and after a period of public comment have approved the new rules that eliminate the ban.

from the Wall Street Journal, 2009-Oct-30, by Michael W. Mcconnell:

The Pay Czar Is Unconstitutional
Kenneth Feinberg hasn't been confirmed by the U.S. Senate.

Last week's announcement that "Pay Czar" Kenneth Feinberg slashed compensation for executives at seven large financial firms by an average of 50% stunned Wall Street, stoked the fires of populist resentment, and troubled economists. Will this government-mandated pay cut drive the most talented professionals away from these companies, endangering their recovery? Does it augur further politicization of economic decisions?

Lost in the arguments over economics and political theory, however, is a more basic question: Was this action constitutional?

Mr. Feinberg's ukase is the most prominent example (and not just by the Obama administration) of the exercise of power by an individual unilaterally appointed by the executive branch without Senate confirmation—and thus outside the ordinary channels of Congressional oversight. Earlier this month, the Senate Subcommittee on the Constitution conducted hearings into the constitutional basis for this practice, which many see as an end-run around checks and balances. The Obama administration declined Sen. Russ Feingold's (D., Wisc.) invitation to send a witness to the hearing to explain the constitutional basis for its various "czars."

So who is Kenneth Feinberg, and where did he get the power to set pay for executives at private firms?

As part of the hastily enacted and seldom-read legislation establishing the Troubled Asset Relief Program (TARP), Congress authorized the Secretary of the Treasury to "require each TARP recipient to meet appropriate standards for executive compensation." To carry out this task, last June the Treasury promulgated an emergency "Interim Final Rule," waiving ordinary requirements for a public comment period.

As part of this emergency rule, Treasury Secretary Timothy Geithner created the office of "Special Master" for compensation, delegated his TARP authority to set compensation standards to this officer, and appointed Mr. Feinberg (a lawyer and mediator) to this position, without obtaining Senate confirmation.

Therein lies the problem. The Appointments clause of the Constitution, Article II, section 2, provides that all "Officers of the United States" must be appointed by the president "by and with the Advice and Consent of the Senate." This means subject to confirmation, except that "the Congress may by Law vest the Appointment" of "inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

There is no doubt that Mr. Feinberg is an "officer" of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as "any appointee exercising significant authority pursuant to the laws of the United States." Mr. Feinberg signed last week's orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler. They have the force of law and are surely an exercise of "significant authority" pursuant to an Act of Congress. He is not a mere "employee," acting at the direction of a superior. That means his office is subject to the requirements of the Appointments Clause.

While somewhat more disputable, Mr. Feinberg's is probably an "inferior" officer, defined as one subject to supervision and removal by a member of the cabinet. Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him any time for any reason. This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

But Congress has not done so. On the contrary, it vested the authority to implement TARP's compensation provision in the secretary of the Treasury. The secretary may sub-delegate that power to someone else—but that someone must be an "officer" properly appointed "by and with the advice and consent of the Senate."

The Supreme Court observed in Buckley v. Valeo that the provisions governing appointments under the Constitution reflect more than "etiquette or protocol." They embody the Founders' conviction that all power under U.S. laws must be exercised by officers with constitutional authority.

The Founders understood that the president and heads of the executive departments could not single-handedly carry out the law, so they required Senate confirmation as what the Federalist Papers call "an excellent check" on abuse or favoritism by the president. Yes, there are some offices so inferior that this check may be eliminated—but it is for Congress to judge which ones these may be. Congress and Congress alone has power to dispense with the safeguard of the confirmation process.

The power to set compensation at large American businesses is especially subject to potential abuse, favoritism, arbitrariness, or political manipulation. It is no reflection on Kenneth Feinberg, who has a sterling reputation and who appears to have approached these sensitive duties with a spirit of commendable integrity, to say that the checks and balances of the Constitution should be scrupulously observed. They were not. Because he is not a properly appointed officer of the United States, Mr. Feinberg's executive compensation decisions were unconstitutional.

Mr. McConnell is on the faculty of Stanford University Law School, director of its Constitutional Law Center, and a senior fellow at the Hoover Institution. He was a federal judge on the 10th Circuit Court of Appeals from 2002-2009.

from the Washington Times, 2009-Oct-23, by Stephen Dinan:

White House: Policy 'czars' won't testify

The White House has told Congress it will reject calls for many of President Obama's policy czars to testify before Congress - a decision senators said goes against the president's promises of transparency and openness and treads on Congress' constitutional mandate to investigate the administration's actions.

Sen. Susan Collins, Maine Republican, said White House counsel Greg Craig told her in a meeting Wednesday that they will not make available any of the czars who work in the White House and don't have to go through Senate confirmation. She said he was "murky" on whether other czars outside of the White House would be allowed to come before Congress.

Miss Collins said that doesn't make sense when some of those czars are actually making policy or negotiating on behalf of Mr. Obama.

"I think Congress should be able to call the president's climate czar, Carol Browner, the energy and environment czar, to ask her about the negotiations she conducted with the automobile industry that led to very significant policy changes with regard to emissions standards," Miss Collins said at a hearing Thursday that examined the proliferation of czars.

The debate goes to the heart of weighty constitutional issues about separation of powers. The president argues that he should be allowed to have advisers who are free to give him confidential advice without having to fear being called to testify about it. Democrats and Republicans in Congress, though, argue that those in office who actually craft policy should be able to be summoned to testify because they do more than just give the president advice.

At issue are the 18 positions Miss Collins says Mr. Obama has created since he took office. Of those, she says 10 - the White House says eight - are in the executive office and not subject to Freedom of Information Act requests or requests for testimony.

Czar is an informal term given to the positions.

Sen. Joe Lieberman, Connecticut independent and chairman of the government affairs committee, asked the White House to provide a witness for Thursday's hearing but it did not send one.

In a letter last week to Miss Collins, though, Mr. Craig explained that the White House is not trying to circumvent Congress.

"We recognize that it is theoretically possible that a president could create new positions that inhibit transparency or undermine congressional oversight. That is simply not the case, however, in the current administration," Mr. Craig wrote.

Mr. Craig said the new positions Mr. Obama has created within the White House "are solely advisory in nature" and have no independent authority.

Senators disagreed with that evaluation, pointing to Mrs. Browner and health care czar Nancy-Ann DeParle, who is Mr. Obama's health care adviser.

"We do happen to have a Cabinet officer with Health and Human Services with whom I have never had a conversation on health care, not because I have any opposition to her but because it's my perception Nancy-Ann DeParle is calling the shots," said Sen. Robert F. Bennett, Utah Republican.

Criticism of czars has boiled over after talk-show host Glenn Beck - who senators at the hearing repeatedly referred to as "he who shall not be named" - began a campaign to highlight their proliferation in the Obama administration. But Miss Collins said she's been looking at czars for months, and she doesn't have problems with many of the czars Mr. Beck has criticized.

Still, Mr. Craig spent two pages of his four-page letter to Miss Collins critiquing Mr. Beck's positions.

Legal experts testifying before the Senate panel said Congress needs to be careful not to overreach in reacting. They said options open to lawmakers include writing new laws to restrict advisers' authority or writing the positions into law as needing Senate confirmation. A White House aide, speaking on the condition of anonymity, said they are trying to work to accommodate "all reasonable congressional requests for information" and said some White House advisers have given informal briefings to members of Congress in lieu of testimony.

The aide also said some czars are outside the White House itself and they can be called to testify. The aide said five of them have already done so.

Sen. Claire McCaskill, Missouri Democrat, blasted Republicans for raising the issue and said she took offense at their comparisons between Mr. Obama and President Nixon.

She said Congress should instead be looking at the legality of presidential signing statements to shape how laws are implemented - a tool whose use expanded substantially under President George W. Bush.

Last month, Miss Collins offered an amendment to compel administration officials to testify, but it was ruled not germane to the bill being debate.

Democrats said it went too far because it would have covered all executive branch employees, including the national security adviser and the chief of staff, who have always been recognized as out of bounds.

Miss Collins said the issue shouldn't be so intractable and that Congress and the White House should be able to agree on a list of people who should be able to testify.

For his part, Mr. Lieberman said he's still looking for a good solution.

"We both share a desire to do something about this to help Congress uphold our responsibility for oversight, but we understand the balance here as reflected in the Constitution," he said.

from the Wall Street Journal, 2009-Sep-18, by David B. Rivkin Jr. and Lee A. Casey:

Mandatory Insurance Is Unconstitutional
Why an individual mandate could be struck down by the courts.

Federal legislation requiring that every American have health insurance is part of all the major health-care reform plans now being considered in Washington. Such a mandate, however, would expand the federal government’s authority over individual Americans to an unprecedented degree. It is also profoundly unconstitutional.

An individual mandate has been a hardy perennial of health-care reform proposals since HillaryCare in the early 1990s. President Barack Obama defended its merits before Congress last week, claiming that uninsured people still use medical services and impose the costs on everyone else. But the reality is far different. Certainly some uninsured use emergency rooms in lieu of primary care physicians, but the majority are young people who forgo insurance precisely because they do not expect to need much medical care. When they do, these uninsured pay full freight, often at premium rates, thereby actually subsidizing insured Americans.

The mandate's real justifications are far more cynical and political. Making healthy young adults pay billions of dollars in premiums into the national health-care market is the only way to fund universal coverage without raising substantial new taxes. In effect, this mandate would be one more giant, cross-generational subsidy—imposed on generations who are already stuck with the bill for the federal government's prior spending sprees.

Politically, of course, the mandate is essential to winning insurance industry support for the legislation and acceptance of heavy federal regulations. Millions of new customers will be driven into insurance-company arms. Moreover, without the mandate, the entire thrust of the new regulatory scheme—requiring insurance companies to cover pre-existing conditions and to accept standardized premiums—would produce dysfunctional consequences. It would make little sense for anyone, young or old, to buy insurance before he actually got sick. Such a socialization of costs also happens to be an essential step toward the single payer, national health system, still stridently supported by large parts of the president's base.

The elephant in the room is the Constitution. As every civics class once taught, the federal government is a government of limited, enumerated powers, with the states retaining broad regulatory authority. As James Madison explained in the Federalist Papers: "[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects." Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution.

These are mostly found in Article I, Section 8, which among other things gives Congress the power to tax, borrow and spend money, raise and support armies, declare war, establish post offices and regulate commerce. It is the authority to regulate foreign and interstate commerce that—in one way or another—supports most of the elaborate federal regulatory system. If the federal government has any right to reform, revise or remake the American health-care system, it must be found in this all-important provision. This is especially true of any mandate that every American obtain health-care insurance or face a penalty.

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005), the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such "activities, taken in the aggregate, substantially affect interstate commerce."

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not "regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity." Of course, a health-care mandate would not regulate any "activity," such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Health-care backers understand this and—like Lewis Carroll's Red Queen insisting that some hills are valleys—have framed the mandate as a "tax" rather than a regulation. Under Sen. Max Baucus's (D., Mont.) most recent plan, people who do not maintain health insurance for themselves and their families would be forced to pay an "excise tax" of up to $1,500 per year—roughly comparable to the cost of insurance coverage under the new plan.

But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a "tax" that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by "taxing" anyone who doesn't follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.

This type of congressional trickery is bad for our democracy and has implications far beyond the health-care debate. The Constitution's Framers divided power between the federal government and states—just as they did among the three federal branches of government—for a reason. They viewed these structural limitations on governmental power as the most reliable means of protecting individual liberty—more important even than the Bill of Rights.

Yet if that imperative is insufficient to prompt reconsideration of the mandate (and the approach to reform it supports), then the inevitable judicial challenges should. Since the 1930s, the Supreme Court has been reluctant to invalidate "regulatory" taxes. However, a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress's constitutional power will present the question whether there are any limits on Congress's power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care.

Messrs. Rivkin and Casey, Washington D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

from the Wall Street Journal, 2009-Sep-27, by L. Gordon Crovitz:

You Commit Three Felonies a Day
Laws have become too vague and the concept of intent has disappeared.

When we think about the pace of change in technology, it's usually to marvel at how computing power has become cheaper and faster or how many new digital ways we have to communicate. Unfortunately, this pace of change is increasingly clashing with some of the slower-moving parts of our culture.

Technology moves so quickly we can barely keep up, and our legal system moves so slowly it can't keep up with itself. By design, the law is built up over time by court decisions, statutes and regulations. Sometimes even criminal laws are left vague, to be defined case by case. Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become potential criminals.

Boston civil-liberties lawyer Harvey Silverglate calls his new book "Three Felonies a Day," referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

Mr. Silverglate describes several cases in which prosecutors didn't understand or didn't want to understand technology. This problem is compounded by a trend that has accelerated since the 1980s for prosecutors to abandon the principle that there can't be a crime without criminal intent.

In 2001, a man named Bradford Councilman was charged in Massachusetts with violating the wiretap laws. He worked at a company that offered an online book-listing service and also acted as an Internet service provider to book dealers. As an ISP, the company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients.

The federal wiretap laws, Mr. Silverglate writes, were "written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change." Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering "material support" to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there's liability for anything in an online chain, it would be hard to avoid prosecution.

Mr. Silverglate, a liberal who wrote a previous book taking the conservative position against political correctness on campuses, is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.

These miscarriages are avoidable. Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.

Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.

Mr. Silverglate, who will testify against the bill later this week, tells me he figures that "being emotionally distressed is just part of living in a free society." New technologies like the Web, he concludes, "scare legislators because they don't understand them and want to control them, even as they become a normal part of life."

In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.

from FOXNews.com, 2009-Jul-21, by Brian Walsh:

from the Wall Street Journal, 2009-Nov-4, p.A24:

California Stealin'
Sacramento demands a loan from taxpayers.

Desperation grabs for revenue are nothing new in politics, but California is once again leading the way in creative financing.

To help close yet another gaping budget deficit, now estimated to be $7 billion this year and reach as high as $20 billion next, Sacramento lawmakers have authorized a 10% increase in the amount of taxes withheld from worker paychecks starting November 1 and through 2010. The extra withholding tax will reduce Californians' take-home pay by about $1.7 billion for the year. But the lawmakers say this isn't a tax increase. OK, how about calling it a compulsory interest-free loan from taxpayers to the state?

According to the Franchise Tax Board, 10,004,000 Californians overpaid their state taxes last year and received an average refund of $903. The withholding penalty is expected to snatch between $20 and $90 a month from middle-class families. For those feeling the pinch of recession and living paycheck to paycheck, that penalty will hurt.

Of course, the government is obliged to return this money next spring when workers get their tax refunds, so this is the ultimate budget gimmick. It borrows from taxpayers now and deepens the budget hole next year. And we almost hate to ask: What happens come April if the state doesn't have enough money to pay the tax refunds it owes its citizens? Will taxpayers get IOUs the way state contractors did last year when Sacramento ran out of money?

Meanwhile, Governor Arnold Schwarzenegger and the legislature now face their sixth "extraordinary session" to balance the budget. Income tax rates went up last year by 0.25%, bringing the top rate to 10.55%, but receipts are already coming in $1 billion below projections, according to the state controller.

The politicians could use this continuing crisis as an opportunity to reform the state's tax code with lower rates and fewer deductions and loopholes, as recently proposed by the governor's tax reform commission. But that plan has been panned by the ruling classes in Sacramento. They claim to want to steal only from the rich, but their latest withholding ruse is showing that they'll steal from anyone with a paycheck.

from the Wall Street Journal, 2009-Nov-7:

Congress's Brass Knuckles
Another casualty of the lead toy 'safety' law.

The wheels on the bus won't go 'round and 'round in many playrooms this year if the Consumer Product Safety Commission has its way. On Wednesday, the Commission voted against a petition to exempt small pieces of brass used in the wheels on toy cars, tractors and buses from draconian lead standards. The fiasco is one more sign that Congress must address the chaos created by its 2008 law regulating lead in toys.

Lead is a typical component of brass but poses minuscule risk to children through toys. As the CPSC's own staff remarked, "the estimated exposure to lead from children's contact with the die-cast toys would have little impact on the blood lead level." But no matter, the language of the law says the Commission can't consider risk in granting exclusions. Any potential absorption of lead at all is grounds for a ban, despite its presence in other common brass fixtures kids get their hands on regularly, like doorknobs and keys.

Democrats in Congress have insisted that problems with the law they wrote are the fault of the CPSC charged with implementing it. How's that going? Following the Commission's 3-2 vote against the brass exemption, CPSC Commissioner Anne Northrop noted that the decision not to grant a brass exemption shows that "the Commission does not believe there is any [flexibility] written into the law." Without action from Congress to address the chaos it created, Ms. Northrop said, "More small businesses will be forced to shut down."

CPSC Chairman Inez Tenenbaum has insisted that changing the law would be "premature." Yet it has already been more than a year of bedlam for manufacturers and retailers negotiating these rules. In February, the CPSC's one year stay of enforcement on testing will expire, opening the field to more crackdowns on small businesses.

Many of the worst problems were apparent when the bill was written but lawmakers ignored the warnings in order to satisfy Naderite interest groups. Democrats have refused to fix this mess, at great cost to businesses, and further underscoring government's reputation for unfairness and incompetence.

from Reuters, 2009-Oct-31, by Jonathan Stempel and Rachelle Younglai, with editing by Alan Elsner:

Madoff documents reveal incredulous, unfocused SEC

NEW YORK/WASHINGTON - U.S. securities investigators raised repeated concern over how Bernard Madoff could be running an honest business, but never followed through on the many red flags they uncovered.

Hundreds of documents released on Friday by U.S. Securities and Exchange Commission's portray an agency at times skeptical or dismissive of evidence that the now imprisoned mastermind of the world's largest Ponzi scheme was up to no good.

At other times, it appeared the agency knew that goings-on at Bernard L. Madoff Investment Securities LLC were improper but never followed through on their discoveries or on the allegations of chief whistleblower Harry Markopolos.

"I don't think we should worry about Bernie finding out to whom we speak .... we are not telling anybody that we have found anything improper (except for his lies to us, of course)," one SEC investigator wrote in a May 16, 2006 e-mail.

In September, SEC Inspector General David Kotz issued his full report on how the agency mishandled warnings and assigned inexperienced lawyers to examine Madoff.

He said this led to five botched probes starting in the early 1990s that might have unearthed Madoff's estimated $65 billion Ponzi scheme.

Madoff is serving a 150-year prison sentence after pleading guilty to the fraud. He told Kotz that if SEC lawyers had done some basic investigative work, it "would've been easy for them to see" he was a crook.

The documents could prove fodder for the lawyers suing the SEC for negligence on behalf of several Madoff victims.

This week, the court-appointed trustee liquidating Madoff's firm estimated the crime cost investors at least $21.2 billion, but only $534 million of payments have been authorized.

The SEC under current Chairman Mary Schapiro is implementing reforms designed to avoid a repeat, including more oversight by senior lawyers and greater use of subpoenas.

MARKOPOLOS

The new documents highlight the role of Markopolos who in 2001 began asking the SEC how Madoff could sustain high returns for investors in all sorts of market conditions.

He said at the time that Madoff was either "incredibly talented and/or lucky," or was using an unspecified process that needed investigation, or was running a Ponzi scheme.

Subsequent e-mails and handwritten notes sent during probes of Madoff's trading business show SEC staffers speculating or forwarding criticisms that it would be "impossible" for Madoff to perform as well he claimed.

In 2005, some at the SEC dismissed Markopolos when he presented the agency with a report on Madoff, titled "The World's Largest Hedge Fund is a Fraud."

"I have some qualms about a self identified independent fraud analyst," one investigator wrote to a colleague.

Another said "the author's motives are to make money by uncovering the alleged fraud. I think he is on a fishing expedition and doesn't have the detailed understanding of Madoff's operations that we do."

A third admitted that there remained "a little mystery" about Madoff's operations, but that a Ponzi scheme did not appear likely "from what we've seen."

OTHERS HAD SUSPICIONS

Markopolos wasn't the only whistleblower.

In October 2005, the SEC learned about an unnamed investor who claimed to be a former Madoff client and was "deeply concerned that Madoff is running a very sophisticated fraudulent pyramid scheme." Six months later, an anonymous letter addressed to then SEC Chairman Christopher Cox warned of "a scandal of major proportion" brewing at Madoff's firm.

Madoff would later claim astonishment the SEC did not catch him sooner, perhaps because its staff were star-struck by his reputation build over more than four decades on Wall Street.

But Arthur Levitt, who chaired the SEC from 1993 to 2001, disputed that. When asked if the SEC gave preferential treatment to financial titans accused of malfeasance, Levitt said it "salivated," and would not "go easy on anybody."

from National Review online, 2009-Oct-21, by Lawrence J. Mcquillan:

from the Wall Street Journal, 2009-Oct-31, p.A18:

Pay-to-Play Torts
Pension middlemen get investigated; lawyers get a pass.

Pay-to-play schemes involving public officials and the pension funds they oversee are finally getting the hard look they deserve. Some 36 states are investigating how financial brokers and other middlemen have used kickbacks and campaign contributions to gain access to retirement funds. Now if only plaintiffs law firms would get the same scrutiny.

Like investment funds, class-action law firms hire intermediaries to help win state business. But the more common practice is for plaintiffs lawyers to make campaign contributions to public officials with the goal of being selected by those same officials to represent the pension fund in securities litigation.

These enormous state funds are among the world's largest institutional investors, and they frequently sue companies on behalf of shareholders. The role of pension funds in such suits became all the more important after the securities-law reform of 1995 that limited the ability of some plaintiffs to file shareholder lawsuits. So plaintiffs law firms have worked especially hard to turn these pension funds into business partners in their pursuit of class action riches.

The law firms typically agree to take the cases on a contingency basis that means no fees up front but a huge share (30% or more) of any settlement or jury verdict. However, attorneys suing on the government's behalf are supposed to be neutral actors whose goal is justice, not lining their own pockets. When for-profit lawyers are involved with a contingency fee at the end of the lawsuit rainbow, the incentives shift toward settling to get a big payday.

This month, the New York Daily News reported that the lawyers representing New York state's $116.5 billion pension fund have received more than a half-billion dollars in contingency fees over the past decade. Meanwhile, state Comptroller Thomas DiNapoli, the fund's sole trustee, "has raked in more than $200,000 in campaign cash from law firms looking to represent the state's pension fund in big-money suits," the paper reported. Attorneys from one Manhattan firm, Labaton Sucharow, gave Mr. DiNapoli $47,500 in December 2008, only months after he chose the firm as lead counsel in a class action suit against Countrywide Financial. Mr. DiNapoli's office says firms that give money don't get preferential treatment.

The Empire State is hardly unusual. Labaton Sucharow has given more than $58,000 to Massachusetts State Treasurer Timothy Cahill, who recently announced his gubernatorial bid. The Labaton firm is representing state and county pension funds in more than a dozen security class action lawsuits.

The Louisiana State Employees' Retirement System is among the most litigious in the nation. John Kennedy, the state treasurer who helps decide when Louisiana's major pension funds should bring a law suit, has received tens of thousands of dollars in political donations from Bernstein Litowitz, which has offices in New York, New Orleans and San Diego and was the country's top-grossing securities class-action firm in 2008. The law firm has represented Louisiana's public pension funds at least 13 times since 2004, and its partners donated nearly $30,000 to Mr. Kennedy's two most recent campaigns, even though he ran unopposed both times.

In Mississippi, the state attorney general determines when the public employees retirement fund should bring a securities class action and which outside firms will represent the fund. Would you be shocked to learn that AG Jim Hood has frequently chosen law firms that have donated to his campaigns?

Mr. Hood is also partial to Bernstein Litowitz. On February 21, 2006, he chose the firm to represent the Mississippi Public Employees Retirement Fund in a securities class action against Delphi Corporation—just days after receiving $25,000 in donations from Bernstein Litowitz attorneys. The suit was eventually settled, and the lawyers on the case received $40.5 million in fees. Mr. Hood's campaign would appear to deserve a raise.

Back in New York, Attorney General Andrew Cuomo has garnered banner headlines and much praise for his pay-to-play pension fund probe that has already led to four guilty pleas by investors and politicians. Good for him. Yet when asked about pursuing the trial bar for similar behavior, his office says it has no jurisdiction to go after law firms in class action suits. He could at least turn down their campaign money, however.

Mr. Cuomo's campaign happens to have received $200,000 from securities law firms. Perhaps it's merely a coincidence that the expected candidate for governor in 2010 doesn't want to investigate his funders. Mr. Cuomo recently proposed legislation that puts restrictions on campaign donations from investment firms seeking pension business. His proposal does not seek the same restrictions on securities law firms. Perhaps that's another coincidence.

If Mr. Cuomo won't investigate pay-to-play torts on his own, then someone else should investigate Mr. Cuomo's relationship with these pay-to-play law firms.

from the National Law Journal via yahoo.com, 2009-Oct-28, by Lynne Marek:

Price to PepsiCo for Not Being in Court: $1.26 Billion

What's the cost of not showing up to court? For PepsiCo Inc., it's a $1.26 billion default judgment. A Wisconsin state court socked the company with the monster award in a case alleging that PepsiCo stole the idea to bottle and sell purified water from two Wisconsin men.

Now the company is scrambling to salvage the situation. The damages award was handed down on Sept. 30. PepsiCo filed motions to vacate the order and dismiss the claims on Oct. 13, saying it wasn't even aware of the lawsuit until Oct. 6.

The litigation began in April when Charles Joyce and James Voigt sued the soft drink maker and two of its distributors, alleging they had misappropriated trade secrets from confidential discussions the plaintiffs had with the distributors in 1981 about selling purified water. The information was illicitly passed to PepsiCo, which used it to develop and sell Aquafina bottled water, the plaintiffs allege in the case filed in the Circuit Court of Jefferson County before Judge Jacqueline Erwin.

In court documents, PepsiCo argues it was improperly served with the Wisconsin lawsuit in North Carolina, but also asks the court to excuse the corporate bureaucracy that buried a legal document for weeks. While plaintiffs say they served the lawsuit in June on PepsiCo's registered agent in North Carolina, where the company is incorporated, PepsiCo says its law department at the company's Purchase, N.Y.-based headquarters was not notified until September.

"The bottom line is there was a defect in the process for us, but also for" the plaintiffs, said PepsiCo spokesman Joe Jacuzzi, who called the case "highly dubious."

Robert Roth, a lawyer for PepsiCo at Menomonee, Wis.-based Niebler, Pyzyk, Roth & Carrig, couldn't be reached for comment. Another lawyer for PepsiCo, Dean Panos, a partner at Chicago-based Jenner & Block, declined to comment.

In court papers, PepsiCo claims it first received a legal document related to the case from the North Carolina agent on Sept. 15 when a copy of a co-defendant's letter was forwarded to Deputy General Counsel Tom Tamoney in PepsiCo's law department. Tamoney's secretary, Kathy Henry, put the letter aside and didn't tell anyone about it because she was "so busy preparing for a board meeting," PepsiCo said in its Oct. 13 motion to vacate.

When Henry received a forwarded copy of the plaintiff's motion for default judgment on Oct. 5, she sent that to Yvonne Mazza, a legal assistant for Aquafina matters. Remembering that she still had the other document, Henry passed it to Mazza too. The next day Mazza sent the documents to David Wexler, a department attorney, and he "immediately" called the agent to get a copy of the complaint.

Lawyers for PepsiCo distributors Wis-Pak Inc. and Carolina Canners Inc. made court appearances in June and July. PepsiCo was at a loss to explain why it hadn't heard about the case from them. "It's just another unfortunate thing that didn't come together," Jacuzzi said.

In seeking to dismiss the case, PepsiCo argues that the statute of limitations should preclude the lawsuit, brought 15 years after the company started selling Aquafina and more than two decades after the alleged confidential talks. Moreover, "the $1.26 billion judgment that has been entered is unprecedented in size and justice requires that PepsiCo have a chance to defend itself," the company said.

The lead plaintiffs lawyer, David Van Dyke of Chicago-based Cassiday Schade, said Wisconsin courts have been "pretty clear that they don't like" vacating default judgments. "There is a possibly that a judge may say we're going to litigate the damages aspect of it," Van Dyke said.

A hearing is scheduled for Nov. 6.

from the Wall Street Journal, 2009-Oct-29, p.A20:

First-Time Fraudsters
A tax credit so silly even a four-year-old can exploit it.

It's hard not to laugh when viewing the results of the federal first-time home-buyer tax credit. The credit, worth up to $8,000 for the purchase of a home, has only been available since April of last year. Yet news of the latest taxpayer-funded mortgage scam has traveled fast. The Treasury's inspector general for tax administration, J. Russell George, recently told Congress that at least 19,000 filers hadn't purchased a home when they claimed the credit. For another 74,000 filers, claiming a total of $500 million in credits, evidence suggests that they weren't first-time buyers.

Among those claiming bogus credits, at least some of them were definitely first-timers. The credit has already been claimed by 500 people under the age of 18, including a four-year-old. This pre-K housing whiz likely bought because mom and dad make too much to qualify for the full credit, which starts to phase out at $150,000 of income for couples, $75,000 for singles.

As a "refundable" tax credit, it guarantees the claimants will get cash back even if they paid no taxes. A lack of documentation requirements also makes this program a slow pitch in the middle of the strike zone for scammers. The Internal Revenue Service and the Justice Department are pursuing more than 100 criminal investigations related to the credit, and the IRS is reportedly trying to audit almost everyone who claims it this year.

Speaking of the IRS, apparently its own staff couldn't help but notice this opportunity to snag an easy $8,000. One day after explaining to Congress how many "home-buyers" were climbing aboard this gravy train, Mr. George appeared on Neil Cavuto's program on the Fox Business Network. Mr. George said his staff has found at least 53 cases of IRS employees filing "illegal or inappropriate" claims for the credit. "In all honesty this is an interim report. I expect that the number would be much larger than that number," he said.

The program is set to expire at the end of November, so naturally given its record of abuse, Congress is preparing to extend it. Republican Senator Johnny Isakson of Georgia is so pleased with the results that he wants to expand the program beyond first-time buyers and double the income limits.

This is the point in the story when a taxpayer's sense of humor is bound to give way to a different emotion. The credit's cost is running at about $1 billion a month and $15 billion for the year. Also, even when employed by an honest buyer, it's another distortion that drives capital into housing and away from other more productive uses. For America's tens of millions of tax-paying renters, it's another subsidy they provide for their neighbors to be able to sell their houses at a higher price.

While the credit seems to have boosted home sales, many of those sales would have happened anyway and have merely been stolen from the future. Meanwhile, the credit continues to distort the housing market and postpone the day when home prices can find a floor that is a basis for a stable recovery.

More than two years into the housing bust, trillions of dollars in taxpayer losses or guarantees via Fannie Mae and Freddie Mac, and amid an ongoing plague of redefaults in federal programs to prevent foreclosures, politicians are still trying to manipulate housing prices. And leave it to Congress to design a program that even a four-year-old can scam.

from City Journal, 2009-Autumn, by Judith Miller:

The Mexicanization of American Law Enforcement
The drug cartels extend their corrupting influence northward.

Beheadings and amputations. Iraqi-style brutality, bribery, extortion, kidnapping, and murder. More than 7,200 dead—almost double last year’s tally—in shoot-outs between federales and often better-armed drug cartels. This is modern Mexico, whose president, Felipe Calderón, has been struggling since 2006 to wrest his country from the grip of four powerful cartels and their estimated 100,000 foot soldiers.

But chillingly, there are signs that one of the worst features of Mexico’s war on drugs—law enforcement officials on the take from drug lords—is becoming an American problem as well. Most press accounts focus on the drug-related violence that has migrated north into the United States. Far less widely reported is the infiltration and corruption of American law enforcement, according to Robert Killebrew, a retired U.S. Army colonel and senior fellow at the Washington-based Center for a New American Security. “This is a national security problem that does not yet have a name,” he wrote last fall in The National Strategy Forum Review. The drug lords, he tells me, are seeking to “hollow out our institutions, just as they have in Mexico.”

Corruption indictments and convictions linked to drug-trafficking organizations, known in police parlance as DTOs, are popping up in FBI press releases with disturbing frequency. In April, for instance, the U.S. Attorney’s office in the Southern District of Texas announced that Sergio Lopez Hernandez, a 40-year-old Customs and Border Protection inspector, had been convicted of drug trafficking, alien smuggling, and bribery. Hernandez pleaded guilty to accepting over $150,000 in bribes and to conspiring to sell cocaine and bring illegal aliens into the country.

Or consider the case of border inspector Margarita Crispin—“precisely the kind of border corruption case that alarms us,” says William Abbott, an assistant special agent in charge of the FBI’s criminal branch in El Paso, Texas. In 2005, he says, a federal informant tipped off the Bureau that Crispin was deliberately ignoring traffickers who moved drugs and other contraband through her border post. Then, in the spring of 2006, a van that had just gone through Crispin’s lane sputtered out of gas. The driver abandoned the vehicle and fled back across the border into Mexico—and when other inspectors opened the van’s doors, they found nearly 6,000 pounds of marijuana in plain sight. Crispin couldn’t explain why she hadn’t noticed the stash when she had examined the vehicle, according to an FBI press release on the case and an official who worked on it.

Another year of surveillance uncovered evidence of Crispin’s drug-cartel connections. Though she lived simply in El Paso, she socialized with known drug traffickers in Mexico and had bought two expensive homes and several luxury vehicles there through straw purchasers. Crispin was then arrested. After pleading guilty in 2008 to conspiring to import drugs and abusing the public trust, she was sentenced to 20 years in prison and ordered to forfeit $5 million in assets she was estimated to have stolen.

Government investigators believe that Crispin had been working for the cartels for at least a year before she applied to become an inspector. In other words, federal screening failed to detect that, at the time she applied for her job, the cartels had already recruited her to facilitate their cross-border trafficking. At one point, federal investigators say, Crispin claimed to have wanted out of her arrangement with the cartels. “But we think she was kidnapped and forcibly taken back to Mexico to remind her of whom she was working for,” Abbott says. Having family in both Juárez and El Paso, cities within sight of each other across the border, Crispin found herself trapped.

Abbott says that the Crispin case is atypical. But the potential damage, he stresses, is huge. “You have the mule: an illegal immigrant who carries five pounds of marijuana in his backpack across the border through the desert. Compare that with the border inspector who waves through five completely loaded vans, as she did.”

Experts disagree about how deep this rot runs. Some try to downplay the phenomenon, dismissing the law enforcement officials who have succumbed to bribes or intimidation from the drug cartels as a few bad apples. Peter Nuñez, a former U.S. attorney who lectures at the University of San Diego, says he does not believe that there has been a noticeable surge of cartel-related corruption along the border, partly because the FBI, which has been historically less corrupt than its state and local counterparts, has significantly ratcheted up its presence there. “It’s harder to be as corrupt today as locals were in the 1970s, when there wasn’t a federal agent around for hundreds of miles,” he says.

But Jason Ackleson, an associate professor of government at New Mexico State University, disagrees. “U.S. Customs and Border Protection is very alert to the problem,” he tells me. “Their internal investigations caseload is going up, and there are other cases that are not being publicized.” While corruption is not widespread, “if you increase the overall number of law enforcement officers as dramatically as we have”—from 9,000 border agents and inspectors prior to 9/11 to a planned 20,000 by the end of 2009—“you increase the possibility of corruption due to the larger number of people exposed to it and tempted by it.” Note, too, that Drug Enforcement Agency data suggest that Mexican cartels are operating in at least 230 American cities.

Washington is taking no chances. In recent months, the FBI’s Criminal Division has created seven multiagency task forces and assigned 120 agents to investigate public corruption, drug-related and otherwise, in the Southwest border region, says Debbie Weierman of the FBI’s public-affairs office in Washington. Meanwhile, Customs and Border Protection, the largest U.S. law enforcement agency, has increased the number of its internal investigators over three years from five to 220.

And David Shirk, director of the San Diego–based Trans-Border Institute and a political scientist at the University of San Diego, says that recent years have seen an “alarming” increase in the number of Department of Homeland Security personnel being investigated for possible corruption. “The number of cases filed against DHS agents in recent years is in the hundreds,” says Shirk. “And that, obviously, is a potentially huge problem.” An August 2009 investigation by the Associated Press supports his assessment. Based on records obtained under the Freedom of Information Act, court records, and interviews with sentenced agents, the AP concluded that more than 80 federal, state, and local border-control officials had been convicted of corruption-related crimes since 2007, soon after President Calderón launched his war on the cartels. Over the previous ten months, the AP data showed, 20 Customs and Border Protection agents alone had been charged with a corruption-related crime. If that pace continued, the reporters concluded, “the organization will set a new record for in-house corruption.”

While the FBI task forces focus mainly on corruption along the border, cartel-related vice has spread much deeper into the American heartland. Consider New Mexico’s San Juan County, some 450 miles north of the border, where the U.S. Attorney’s office has recently prosecuted a startling corruption case that may be a portent of things to come.

Back in 1994, Ken Christesen was a detective in the Four Corners, the region where the borders of Colorado, Arizona, Utah, and New Mexico meet. That was the year that one Miguel Tarango was convicted of murdering a member of a rival drug gang in a territorial dispute. The conviction made Christesen realize that the Tarango family was “far more significant than we had initially thought” in the local drug trade, he tells me over coffee at Donna Kay’s, a popular café in Bloomfield, New Mexico.

Even in a county where 80 to 90 percent of all serious crimes are linked to drugs—an area where “you can’t swing a dead cat without hitting a drug dealer”—the Tarangos stood out. The family was locally based but had ties to Mexico’s Sinaloa and Juárez cartels, and it had big ideas about controlling the lucrative trade in methamphetamine and other illicit drugs in San Juan County. The clan’s rising star was Daniel Tarango, Jr., a short, slim, American-born hipster with a pencil-thin mustache, a fondness for black T-shirts, and no visible means of support. After his father and uncle were convicted of heavy-duty meth trafficking, sent to federal prison, and deported, Danny, known to local cops as “the Runt,” took charge of the family business.

By 2002, Christesen had become a lieutenant in the San Juan County sheriff’s office, where he participated in Operation Farmland, an effort run by a federal, state, and local alliance called the Region II Narcotics Task Force. The operation, which targeted meth sales in the Four Corners, ended in 2003 with 250 people charged, among them Mike Marshall, a former sheriff’s deputy sentenced to five years in federal prison for distributing drugs. Christesen happened to know that Marshall and Danny Tarango had often been seen together. If Tarango had befriended Marshall, Christesen reasoned, might he also be trying to get inside information from active cops about the task force itself?

The hero of Operation Farmland was Levi Countryman, then a San Juan County sheriff’s deputy who had gotten many of the tips and intelligence that led to the massive arrests. Despite Countryman’s ostensibly heroic role in Farmland, Christesen was suspicious. Farmland hadn’t fingered a single member of the Tarango clan, despite its growing prominence in the county drug trade. And despite Farmland’s apparent success, methamphetamine still flowed freely into Farmington, Bloomfield, Shiprock, Aztec, and other forlorn, trailer-strewn desert towns in the Four Corners.

Christesen concluded that Danny Tarango and Levi Countryman were working together—that “we made the arrests, Levi became a hero, and Danny got rich by eliminating his competition,” Christesen recalls. But he had no proof. Nevertheless, when he took over the Narcotics Task Force in October 2004, he quietly put Levi Countryman at the top of his target list.

Christesen’s suspicions about Countryman had been reinforced in the spring of 2004, when officers searching one of Danny Tarango’s many houses found an all-terrain vehicle registered in Countryman’s name. What was Countryman’s ATV doing in the Runt’s garage? Under intense scrutiny, Countryman resigned as deputy sheriff and told friends that he would enter the private sector as a stock trader.

But sensitive task-force information kept leaking out to the Tarangos, much to Christesen’s frustration. Every time Christesen got close to persuading someone to talk or testify in a drug-related case, the inquiry would fall apart. A parade of witnesses who had agreed to testify would suddenly change their minds. One potential witness in a drug case against Josh Tarango, Danny’s younger brother, refused to testify in 2006 after her daughter’s car was burned on her front lawn. “Every time we got close to tying Tarango to Countryman,” Christesen recalls, “an informant would be burned”—intimidated, that is. “I began to think that our own building was bugged. I even asked the FBI to do a sweep.” Tired of waiting for federal help, “we finally bought old equipment and did it ourselves.” The sweep turned up nothing. Meanwhile, violence in San Juan County kept escalating, much of it apparently tied to Danny Tarango.

In January 2007, the FBI finally responded to Christesen’s repeated appeals and quietly opened an investigation into whether the task force’s operations were being compromised from within. Because everyone on the task force was potentially a suspect, the FBI agents told no one in local law enforcement—not even Christesen—precisely what they were doing and whom they were targeting. But after wiretapping Danny Tarango’s cell-phone calls, they discovered that information about the task force was still being provided by Countryman. Christesen’s suspicions were all too true: Countryman was getting his information from a state police officer named Keith Salazar, one of the unit’s most trusted, experienced members. Countryman and Tarango even referred to Salazar by the code name “Candy” because the information he provided was so “sweet.”

In court, Salazar later argued that he had been forced to betray his fellow officers—that Countryman had threatened, if Salazar refused to cooperate, not only to expose the fact that he had skimmed funds from the task force’s kitty, but also to harm him and his family. But the cell-phone conversations that prosecutor Reeve Swainston played in court made a mockery of that claim. Calling each other several times a day, referring to each other as “bro,” joking and swearing like fraternity brothers staging college pranks, Salazar and Countryman were obviously close friends who enjoyed their dirty work. Salazar eagerly provided Countryman with the names of his fellow officers, even those serving undercover. He gave Countryman pictures he had taken of them, their home addresses, their birth dates and Social Security numbers, and detailed descriptions of their cars and license-plate numbers. He also disclosed the identity of confidential informants; the dates, times, and locations of impending search warrants; the nature of ongoing antidrug investigations in New Mexico and Colorado; and other material that Countryman requested. And he did all this for just $1,000 a month from Tarango.

For his part, Countryman was the perfect middleman. As soon as he got sensitive information from “Candy,” he would call Tarango and pass it along. As a result, Salazar never had to talk to Tarango or meet with him, insulating him from scrutiny. All three men used cell phones specifically dedicated to their double-dealing, creating what Swainston called in his indictment a “compartmentalized line of communication.” But Countryman was more than a go-between; he also distributed some of the methamphetamine he received from Tarango, street profits from which supplemented the $8,000 a month that Tarango routinely paid him.

Christesen suspected that Tarango had turned other law enforcement officers and local and state officials, and he hoped that the FBI’s investigation would uncover them. But the FBI had to cut short its investigation and move against the three men in December 2007, after agents overheard Tarango and Countryman discussing ways to intimidate and possibly harm a deputy sheriff. Among the tactics they discussed were following the deputy’s wife around town, taking photos of her and her children, leaving a photo of her on her car, throwing hypodermic needles on her lawn, delivering a box filled with dying rats to the family’s home, and leaving a pig’s head on the front porch. They agreed that this might send her a message that “her husband needs to back off,” a court document states, quoting part of an intercepted conversation between Tarango and Countryman. Further, the FBI overheard Tarango telling Countryman that he had watched the family’s home at various hours, and Countryman telling Tarango that this deputy’s “ass needed to be whacked.”

Tarango vetoed the proposal, but the FBI had heard enough. Arrest warrants for all three men were promptly issued. But before Tarango could be served, he escaped to Mexico. When the police arrested Countryman at a Denny’s restaurant in Farmington, the county seat, they found a handgun in his truck. In a safe at his home were 13 more firearms, $18,000 in cash, and almost eight pounds of marijuana.

In a sentencing memorandum, Countryman said that his heavy drinking had “clouded” his judgment and asked to be enrolled in a substance-abuse program. Countryman and Salazar pleaded guilty to conspiring to distribute drugs and were each sentenced to six years in prison. Their attorneys argued successfully in court for lighter sentences because of their post-arrest cooperation with law enforcement. And this past June, for reasons that remain murky, Danny Tarango returned from Mexico. His trial is expected to begin soon.

Christesen, who is now running for sheriff in San Juan County, still fears that Danny Tarango’s web of corruption may have been far broader than the public has been told. In the wake of the Countryman and Salazar arrests, the New Mexico state police’s narcotics division was quietly disbanded and reorganized. The fact that the state said so little about its actions leads Christesen and others to believe that the conspiracy may have involved other, still-unnamed, corrupt cops, border patrol agents, and public officials.

But “law enforcement and the communities they serve have been irreversibly damaged” merely by the information that Salazar and Countryman gave Tarango and his Mexican associates, Christesen wrote in a statement that he gave to prosecutor Swainston. In his own statement, Swainston asserted that nine separate law enforcement agencies in New Mexico and six in Colorado had been damaged by Salazar’s betrayal. “It is hard to imagine anything more frightening for a law enforcement officer than to find out after the fact that those upon whom you just executed a . . . search warrant knew you were coming because one of your own told them so,” Swainston wrote in an impassioned 47-page sentencing memorandum.

“Cops hate these cases, hate to investigate and prosecute them, because it shows we’re not perfect, that we’re vulnerable to corruption like other human beings,” Christesen says. “A Salazar looks bad for all of us. But how many other counties like ours are there in the Southwest? How can we be sure that our law enforcement system isn’t being Mexicanized? I’m worried that they’ll start with bribes, and end as they have in Mexico, with intimidation and murder.”

Michael Hayden, director of the Central Intelligence Agency under President George W. Bush, called the prospect of a narco-state in Mexico one of the gravest threats to American national security, second only to al-Qaida and on par with a nuclear-armed Iran. But the threat to American law enforcement is still often underestimated, say Christesen and other law enforcement officials.

Last year, FBI officials tell me, the Bureau worked on nearly 2,500 public corruption cases and convicted more than 700 dishonest public servants throughout the nation. Most of them were unrelated to the cartels, and Special Agent Abbott, of the FBI’s criminal branch in El Paso, says that only 15 to 30 of his region’s cases so far have involved drug-related corruption among law enforcement officials. “But given the damage that can be done by just one corrupt officer or inspector,” he adds, “this is an important vulnerability. We know it.”

Judith Miller is a contributing editor of City Journal, an adjunct fellow at the Manhattan Institute, and a FOX News contributor.

from the Wall Street Journal, 2009-Oct-24:

Police for Profit
A big property seizure case hits the Supreme Court.

With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture.

By now, the individual cases in Illinois have been resolved with either a forfeiture or a return of the property, leading the Justices to question during oral argument whether the case should be dismissed as moot. Whether the court considers the details in Alvarez, the court will soon need to resolve when detention of property violates due process.

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor's office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern.

The numbers can be hefty. In 2008, the Chicago Police Department bragged it took in some $13.5 million in asset forfeitures, nearly double what it had seized the previous year. Golly. Inquiring minds will wonder if there were actually double the situations that called for asset forfeiture last year, or if the Chicago PD is simply more assertive about detaining property when the city is short of money.

The case comes from the Seventh Circuit Court of Appeals, which vindicated the citizens when it ruled that the time between forfeiture and judicial hearing presented an unconstitutional delay. The court required the state to provide property owners with an informal hearing to establish whether there is probable cause to continue to keep the property in custody.

The question for the Supreme Court is whether to uphold what's known as the "Mathews standard," a well-worn method by which courts determine how individuals may challenge government "takings." The standard requires courts to take into account the individual harm caused by a property seizure as well as the risk of mistakes and the cost of additional hearings or other procedures. Illinois prefers a looser standard, allowing the state to continue to delay due process.

The Illinois law compares awkwardly with the federal Civil Asset Forfeiture Reform Act of 2000. As the Cato Institute details in an amicus brief, while the two laws may establish comparable time frames, federal civil forfeiture actions can often run into the hundreds of millions of dollars, a level of cost and complexity well beyond the property at issue under the Illinois drug law. The better match-up is with other state forfeiture laws, and here Illinois performs miserably, taking many times as long to provide a hearing as the likes of Florida, Iowa, Arizona, Missouri and Texas.

We're all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens.

from the Wall Street Journal Europe, 2009-Nov-4:

The War Against the War on Terrorism
A dubious victory in Italian court.

Armando Spataro cut his teeth as a prosecutor hunting down Red Brigade terrorists in Italy. But yesterday in Milan he secured the conviction of 23 Americans charged with kidnapping and spiriting out of the country Osama Mustafa Hassan Nasr in 2003. Their conviction and sentencing—in absentia—is one more dubious milestone in the legal war against the war on terror.

In 2005, Mr. Spataro himself secured an arrest warrant for Mr. Nasr, charging him with running a terrorist-recruitment network in Europe. Mr. Nasr had been under surveillance by the Italian authorities since 9/11. Also that year, Mr. Spataro led the case against Rabei Osman, whom Mr. Spataro accused of masterminding the 2004 Madrid train bombings. A Spanish court would later acquit Mr. Rabei in that case, although Mr. Spataro secured a conviction in Italy on the charge of being a member of a terrorist organization.We recount this history to underscore that Mr. Spataro is no naif when it comes to terrorism cases, nor does he harbor any illusions about Mr. Nasr. He also knows, from his involvement in the Madrid case, that Americans are not the only targets of Islamist terror.

And yet Mr. Spataro now insists that Mr. Nasr's rendition—to Germany and later to Egypt, where he claims he was tortured—was a crime against Italian sovereignty. No matter that the Americans convicted yesterday were, by Mr. Spataro's own account, working in active and close cooperation with Italian intelligence officers.

Mr. Spataro had originally charged five Italians in the case as well, but they were either acquitted or had the charges dropped. The Italian Supreme Court ruled that the bulk of the evidence against them comprised state secrets and so was inadmissable in court. The prosecution argued throughout, in fact, that the decision to spirit Mr. Nasr out of the country was made at the highest levels of the Italian government, and at one point threatened to call Prime Minister Silvio Berlusconi as a witness.

The Italian government's cooperation in the CIA operation is important because it is a long-standing principle of international law that officials of foreign governments operating in a country with the consent of its government should be immune from prosecution. But more broadly, Mr. Spataro's extraordinary pursuit of both Italian and American terrorist hunters shows how far we have come since 9/11. The 9/11 Commission in the U.S. called for far greater cross-border cooperation in the pursuit of terrorists. Instead, we now have prosecutors and judges convicting American agents for "kidnapping" a man whom even Mr. Spataro wants to see in jail.

It's unclear why Mr. Nasr was rendered to Egypt rather than arrested by the Italians, or what danger intelligence officers saw in continuing to leave him at liberty. But regardless of the particulars, it would be a mistake for Europe's high-minded crusaders to rejoice at yesterday's convictions.

If American intelligence officers cannot cooperate with European counterparts without fear of arrest, then both Europe and America are less safe. The 9/11 hijackers formulated their plot against the U.S. in Germany, but Spain, Great Britain and Germany have also been targets. According to some reports, Mr. Nasr was planning an attack on the U.S. Embassy in Rome, which could have killed Italians and Americans.

For years, officials on both sides of the Atlantic have said that, no matter the political differences between the U.S. and Europe, intelligence and law-enforcement cooperation remained strong. These cases are undermining that vital link. Innocent people may eventually pay for Mr. Spataro's "victory."

from the Wall Street Journal, 2009-Oct-18, by Michael B. Mukasey:

Civilian Courts Are No Place to Try Terrorists
We tried the first World Trade Center bombers in civilian courts. In return we got 9/11 and the murder of nearly 3,000 innocents.

The Obama administration has said it intends to try several of the prisoners now detained at Guantanamo Bay in civilian courts in this country. This would include Khalid Sheikh Mohammed, the mastermind of the Sept. 11, 2001 terrorist attacks, and other detainees allegedly involved. The Justice Department claims that our courts are well suited to the task.

Based on my experience trying such cases, and what I saw as attorney general, they aren't. That is not to say that civilian courts cannot ever handle terrorist prosecutions, but rather that their role in a war on terror—to use an unfashionably harsh phrase—should be, as the term "war" would suggest, a supporting and not a principal role.

The challenges of a terrorism trial are overwhelming. To maintain the security of the courthouse and the jail facilities where defendants are housed, deputy U.S. marshals must be recruited from other jurisdictions; jurors must be selected anonymously and escorted to and from the courthouse under armed guard; and judges who preside over such cases often need protection as well. All such measures burden an already overloaded justice system and interfere with the handling of other cases, both criminal and civil.

Moreover, there is every reason to believe that the places of both trial and confinement for such defendants would become attractive targets for others intent on creating mayhem, whether it be terrorists intent on inflicting casualties on the local population, or lawyers intent on filing waves of lawsuits over issues as diverse as whether those captured in combat must be charged with crimes or released, or the conditions of confinement for all prisoners, whether convicted or not.

Even after conviction, the issue is not whether a maximum-security prison can hold these defendants; of course it can. But their presence even inside the walls, as proselytizers if nothing else, is itself a danger. The recent arrest of U.S. citizen Michael Finton, a convert to Islam proselytized in prison and charged with planning to blow up a building in Springfield, Ill., is only the latest example of that problem.

Moreover, the rules for conducting criminal trials in federal courts have been fashioned to prosecute conventional crimes by conventional criminals. Defendants are granted access to information relating to their case that might be useful in meeting the charges and shaping a defense, without regard to the wider impact such information might have. That can provide a cornucopia of valuable information to terrorists, both those in custody and those at large.

Thus, in the multidefendant terrorism prosecution of Sheik Omar Abdel Rahman and others that I presided over in 1995 in federal district court in Manhattan, the government was required to disclose, as it is routinely in conspiracy cases, the identity of all known co-conspirators, regardless of whether they are charged as defendants. One of those co-conspirators, relatively obscure in 1995, was Osama bin Laden. It was later learned that soon after the government's disclosure the list of unindicted co-conspirators had made its way to bin Laden in Khartoum, Sudan, where he then resided. He was able to learn not only that the government was aware of him, but also who else the government was aware of.

It is not simply the disclosure of information under discovery rules that can be useful to terrorists. The testimony in a public trial, particularly under the probing of appropriately diligent defense counsel, can elicit evidence about means and methods of evidence collection that have nothing to do with the underlying issues in the case, but which can be used to press government witnesses to either disclose information they would prefer to keep confidential or make it appear that they are concealing facts. The alternative is to lengthen criminal trials beyond what is tolerable by vetting topics in closed sessions before they can be presented in open ones.

In June, Attorney General Eric Holder announced the transfer of Ahmed Ghailani to this country from Guantanamo. Mr. Ghailani was indicted in connection with the 1998 bombing of U.S. Embassies in Kenya and Tanzania. He was captured in 2004, after others had already been tried here for that bombing.

Mr. Ghailani was to be tried before a military commission for that and other war crimes committed afterward, but when the Obama administration elected to close Guantanamo, the existing indictment against Mr. Ghailani in New York apparently seemed to offer an attractive alternative. It may be as well that prosecuting Mr. Ghailani in an already pending case in New York was seen as an opportunity to illustrate how readily those at Guantanamo might be prosecuted in civilian courts. After all, as Mr. Holder said in his June announcement, four defendants were "successfully prosecuted" in that case.

It is certainly true that four defendants already were tried and sentenced in that case. But the proceedings were far from exemplary. The jury declined to impose the death penalty, which requires unanimity, when one juror disclosed at the end of the trial that he could not impose the death penalty—even though he had sworn previously that he could. Despite his disclosure, the juror was permitted to serve and render a verdict.

Mr. Holder failed to mention it, but there was also a fifth defendant in the case, Mamdouh Mahmud Salim. He never participated in the trial. Why? Because, before it began, in a foiled attempt to escape a maximum security prison, he sharpened a plastic comb into a weapon and drove it through the eye and into the brain of Louis Pepe, a 42-year-old Bureau of Prisons guard. Mr. Pepe was blinded in one eye and rendered nearly unable to speak.

Salim was prosecuted separately for that crime and found guilty of attempted murder. There are many words one might use to describe how these events unfolded; "successfully" is not among them.

The very length of Mr. Ghailani's detention prior to being brought here for prosecution presents difficult issues. The Speedy Trial Act requires that those charged be tried within a relatively short time after they are charged or captured, whichever comes last. Even if the pending charge against Mr. Ghailani is not dismissed for violation of that statute, he may well seek access to what the government knows of his activities after the embassy bombings, even if those activities are not charged in the pending indictment. Such disclosures could seriously compromise sources and methods of intelligence gathering.

Finally, the government (for undisclosed reasons) has chosen not to seek the death penalty against Mr. Ghailani, even though that penalty was sought, albeit unsuccessfully, against those who stood trial earlier. The embassy bombings killed more than 200 people.

Although the jury in the earlier case declined to sentence the defendants to death, that determination does not bind a future jury. However, when the government determines not to seek the death penalty against a defendant charged with complicity in the murder of hundreds, that potentially distorts every future capital case the government prosecutes. Put simply, once the government decides not to seek the death penalty against a defendant charged with mass murder, how can it justify seeking the death penalty against anyone charged with murder—however atrocious—on a smaller scale?

Even a successful prosecution of Mr. Ghailani, with none of the possible obstacles described earlier, would offer no example of how the cases against other Guantanamo detainees can be handled. The embassy bombing case was investigated for prosecution in a court, with all of the safeguards in handling evidence and securing witnesses that attend such a prosecution. By contrast, the charges against other detainees have not been so investigated.

It was anticipated that if those detainees were to be tried at all, it would be before a military commission where the touchstone for admissibility of evidence was simply relevance and apparent reliability. Thus, the circumstances of their capture on the battlefield could be described by affidavit if necessary, without bringing to court the particular soldier or unit that effected the capture, so long as the affidavit and surrounding circumstances appeared reliable. No such procedure would be permitted in an ordinary civilian court.

Moreover, it appears likely that certain charges could not be presented in a civilian court because the proof that would have to be offered could, if publicly disclosed, compromise sources and methods of intelligence gathering. The military commissions regimen established for use at Guantanamo was designed with such considerations in mind. It provided a way of handling classified information so as to make it available to a defendant's counsel while preserving confidentiality. The courtroom facility at Guantanamo was constructed, at a cost of millions of dollars, specifically to accommodate the handling of classified information and the heightened security needs of a trial of such defendants.

Nevertheless, critics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad—people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without.

Mr. Mukasey was attorney general of the United States from 2007 to 2009.

from the Wall Street Journal, 2009-Oct-2, p.A18:

The Fall Guy
Ken Lewis's fatal mistake was believing the feds.

The political class has finally got its man, which is to say that Bank of America CEO Ken Lewis has announced he will retire at the end of the year. Don't you feel better already? Someone had to be sacrificed as expiation for the financial panic and bailout, and the politicians are determined to convince voters that the bankers did it all. So heave-ho, Mr. Lewis had to go.

His alleged offense—investigated by the SEC, a House oversight committee and New York Attorney General Andrew Cuomo—is that his bank failed to adequately disclose to shareholders potential losses and employee bonuses at Merrill Lynch prior to their December vote to approve the BofA takeover of Merrill.

Thus the same government that told Mr. Lewis to keep his mouth shut and close the Merrill transaction now says he should have been more candid with shareholders. The same government that also threatened his job if Mr. Lewis didn't accept Merrill's mounting losses along with new federal money—while refusing to provide an agreement in writing because it didn't want to inform taxpayers—now questions the disclosures he made to investors. Too bad the same investigative resources will never be used to find out how financial "systemic risk" was supposed to be reduced by forcing Mr. Lewis to merge the country's largest deposit-taking bank with a failing Wall Street trading firm.

On the weekend that Lehman Brothers failed in September 2008, could Mr. Lewis have bought a teetering Merrill Lynch for less than he agreed to pay? Probably. Could he have killed the deal or negotiated a better price before the January closing if Treasury Secretary Hank Paulson hadn't pressured him not to make an issue of Merrill's rising trading losses? Perhaps.

But his real, and ultimately fatal, mistake was to believe the feds when they urged him to buy Merrill—and, before that, Countrywide Financial—in the name of saving the financial system. He forgot the oldest lesson about the second oldest profession: Never trust a politician.

from the Wall Street Journal, 2009-Sep-26, by John Fund:

Congress Needs a 72-Hour Waiting Period
Voters want enough time to debate bills. Nancy Pelosi doesn't.

Polls show overwhelming agreement outside the Beltway that it's more important for Congress to get health-care reform done right than done quickly. A Polling Company survey conducted last month found 95% agreeing that members of Congress shouldn't vote on any bill they haven't read in full.

That's why the bipartisan duo of Rep. Brian Baird, a Washington Democrat, and Rep. Greg Walden, an Oregon Republican, came up with the "72-hour resolution," which would require all non-emergency legislation to be posted online, in final form, for at least 72 hours prior to a floor vote. "Members of Congress are too often asked to make decisions on bills that can be longer than telephone books and are only given a few hours to actually read them," says Rep. Baird. "Both parties are guilty, and both should stop doing it."

Although Barack Obama campaigned last year for transparency and openness in government, their idea has languished in committee since June. It has 67 Republican and 31 Democratic co-sponsors—a rare show of bipartisanship. Normally, bills can't be considered for a floor vote until House leadership schedules them. That's why Messrs. Baird and Walden filed a discharge petition to dislodge their bill from committee this week. If a majority of members (218) sign it, their proposal can be voted on over the objections of House Speaker Nancy Pelosi.

But the notion of a 72-hour waiting period is anathema to Democrats who fear that they are running out of time to pass a sweeping health-care bill. This week, White House Budget Director Peter Orszag told Bloomberg News that "the goal" is to finish the entire health-care debate "over the next six weeks or so, maybe sooner." The six-week deadline is critical because it would mean a health-care bill would pass into law just before voters in Virginia and New Jersey go to the polls on Nov. 3 to elect a governor and state legislators. Right now, the GOP leads in both states and nervous Democrats see that as a measure of their stalled health-care reform plans.

So it appears Democratic leaders in both houses of Congress have decided to ram a bill through as quickly as possible. On Wednesday, the Senate Finance Committee voted 12 to 11 to reject a proposal to require a 72-hour waiting period and a full scoring of the bill by the Congressional Budget Office before the committee casts any final vote. Only one Democrat, Blanche Lincoln of Arkansas, voted for the waiting period. Chairman Max Baucus said the idea would delay a vote on the final bill for two weeks and he didn't want to waste another moment.

On the House side, Mrs. Pelosi has told reporters that members will have "a period of time that is sufficient" to consider the final health-care language. But she clearly doesn't want her hands tied. House leadership aides were stationed on the House floor where members must go to sign the 72-hour discharge petition. Mr. Baird acknowledged that leadership aides were strongly discouraging his fellow Democrats from signing. As of yesterday, 173 members had affixed their names, but they included only five of the 31 Democratic co-sponsors.

Mr. Baird isn't phased. "If Americans contact their representative and encourage him or her to sign this discharge petition, I'm confident it will become law," he told me.

Mr. Baird, a six-term incumbent, isn't a natural rebel against his party's leadership. He supports health-care reform that expands coverage to the uninsured and would ban insurance companies from denying coverage on the basis of pre-existing conditions. As a licensed clinical psychologist, he has 23 years of experience treating patients suffering from brain injuries as well as victims of strokes and cancer.

But Mr. Baird says health care is one of many issues that's simply too important to be rushed through. He notes that when Republicans ran the House in 2003 they jammed through a giant prescription drug entitlement in a late-night session when clearly many members didn't understand the bill. More recently, this year the final language of the stimulus bill appeared at midnight one night, giving members only 12 hours to review it before a final vote. Then in June, Mrs. Pelosi brought a global-warming bill to the floor only 16 hours after a 316-page amendment rewriting much of it was introduced.

It's time for Congress to change its ways. Haste can make for more than waste and lead to populist outrage that often takes on a life of its own. That happened after this year's stimulus bill included the infamous provision authorizing executives of bailed-out AIG to get retroactive bonuses.

But despite such train wrecks, there are still members who dismiss calls for calm deliberation. Sen. Kent Conrad, (D., N.D.) who chairs the Senate Budget Committee, claims that go-slow proposals wouldn't make any difference because only 5% of Americans will be able to understand the legalese in bills. Politico.com reports him as saying: "Anybody who thinks that is going to be transparent to the American people is really not telling it like it is."

Mr. Baird admits to being irked by such arguments. "It's nonsense," he told me. "One of the reasons voters are so upset today is that they get the sense they aren't being trusted to make their own judgment about what goes on in Washington."

from the Washington Times, 2009-Sep-28:

Democrats try to pack the courts

Democrats aren't satisfied with the one-party state in which they control Congress and the White House and can politicize the Justice Department and take over the banking and automotive industries. Now liberal Democrats are pushing a court-packing scheme as well.

A subcommittee of the Senate Judiciary Committee will hold a hearing Wednesday on the proposed Federal Judgeship Act of 2009 (S. 1653), which would create positions for 63 new federal judges - 51 in federal district courts and 12 in appeals courts. This proposal is nothing less than a sneaky equivalent of what President Franklin D. Roosevelt tried with his infamous court-packing power grab on the Supreme Court in 1937. The only slight difference is that this attempt is more under the radar.

The Supreme Court has been choosing to consider fewer cases each year. This means the lower courts provide the final disposition for a larger percentage of controversies than ever before. Packing those courts with new, loyal liberals can thus have a huge effect on legal issues without the high profile - and public backlash - of unpopular Supreme Court decisions and fringe appointments to the high court.

Oh, sure, some circuits have a much larger current caseload per judicial panel than others. The 2nd Circuit Court of Appeals, for instance, has 1,314 cases per panel, compared to just 607 cases per panel for the 7th Circuit. Then again, the 2nd Circuit already has four vacancies - available seats on its bench that the president and Senate just haven't gotten around to filling yet. The Federal Judgeship Act of 2009 would add two new seats to that circuit before even filling the existing four vacancies. That makes no sense.

Likewise with the 1st, 3rd, 6th, 8th and 9th Circuits. This new scheme would provide 10 new judgeships combined, even though seven vacancies exist on those circuits. Those vacancies exist almost entirely because Democrats smeared and stonewalled so many of President George W. Bush's nominees rather than allowing them to go to the Senate floor for a vote. To create even more positions for Democrats to fill when current high caseloads exist in part because of Democratic intransigence would be like rewarding card sharks for stacking the deck.

Here's a thought: If Congress really thinks the federal courts need more judgeships, why not write the law so that the new seats don't open up until after the next presidential election? That way, nobody would know which political side would benefit, and the assessment of how many new seats are needed and where would be based on merit alone rather than on partisan political considerations.

from the Wall Street Journal, 2009-Oct-14, p.A22:

MBS, R.I.P.?
A Treasury rule on loan modifications riles the securities market.

The $1.7 trillion mortgage securitization market is still a mess, despite (or in part because of) the Federal Reserve's $700 billion splurge into the market. But another reason may be Treasury's decision to undermine private mortgage-backed securities (MBS) contracts.

BlackRock Inc. Chairman Laurence Fink went so far recently as to call this "one of the biggest issues facing American capitalism." He's worried that to protect banks from billions of dollars more in writedowns on bad second liens (a.k.a., home-equity loans), Treasury is trashing private contracts. "There is modification going on protecting our banks, protecting their balance sheets" and "I'm just very worried about it." Until that issue is cleared up, he says, we won't "get a vibrant securitization market back."

One reason the MBS market blossomed in the first place is because investors who bought a mortgage security believed that first mortgages were senior to second liens. In the event of a foreclosure, second liens would be extinguished first and holders of the first mortgage would get what was left because that's what the contract said.

This changed in April when Treasury announced that instead of foreclosing on delinquent borrowers and wiping out second liens, mortgage servicers (mainly the biggest banks) would be given incentives to modify both loans, thereby spreading the losses. In mid-August, Treasury announced the details of its "Second Lien Modification Program," or 2MP, calling it "a comprehensive solution to help borrowers achieve greater affordability by lowering payments on both first lien and second lien mortgage loans."

Treasury says it is merely trying to help borrowers stay in their homes. But there's little evidence that modifications are stabilizing the market. Treasury's recent release of second-quarter mortgage loan data showed that redefault rates are stubbornly high, even though most new modifications now provide for lower monthly payments of interest and principal.

Nearly 30% of loans modified in the first quarter of this year are now 60 or more days delinquent, up from less than 23% in the first quarter of 2008 and about the same percentage as in the second quarter of 2008. "The percentage of loans that were 60 or more days delinquent or in the process of foreclosure was high and rose steadily in the months subsequent to modification for all quarterly vintages," the report said.

Treasury's other political goal, as Mr. Fink points out, is to help the banks avoid more losses. U.S. financial institutions hold almost $1.1 trillion in second liens, also known as home equity loans or "helocs." Some 42% of all helocs are held by four banks—Bank of America, J.P. Morgan Chase, Citibank and Wells Fargo. Since in a traditional mortgage foreclosure the second loan is usually wiped out, these big four banks have an exposure in the hundreds of billions of dollars.

Mortgage-finance consultant Edward Pinto points out that these same lenders have about $800 billion of first mortgage loans on their books, representing 8% of the total outstanding first mortgage loans in the U.S. But they also act as the servicers on almost 60% of total first mortgages, which means they handle negotiations on loan modifications. Thus when a home owner asks one of the big four banks to redo a loan, the banker may have a greater interest in saving the home-equity loan than in protecting the creditors of the first mortgage.

A vibrant MBS market depends on the sanctity of U.S. contracts. If the world's investors see that the Treasury is willing to reward banks at their expense, there will be fewer such investors in U.S. securities. There will also be less capital for housing. Treasury needs to revisit its foreclosure rules to protect the U.S. reputation of honoring contracts, and the faster the better.

from the Wall Street Journal, 2009-Oct-4:

Opting Out of Medicare
A lawsuit challenges federal coercion in your choice of health care.

A centerpiece of the debate over ObamaCare is government coercion and the right to choose a health-care plan. So it's worth watching a lawsuit now making its way through the federal courts that seeks to let seniors keep their Social Security benefits even if they reject Medicare. This could be a big deal.

Last week, Washington D.C. District Judge Rosemary Collyer handed a victory to three plaintiffs seeking that right. President Obama's Department of Health and Human Services had sought to dismiss the suit challenging so-called POMS rules that say seniors who withdraw from Medicare Part A must also surrender their Social Security benefits. (Part A covers hospital and outpatient services.) The judge ruled the plaintiffs have standing to contest their claim on the merits.

POMS were imposed in 1993 during the Clinton Administration and set forth rules that aren't in the statute or regulations governing Medicare. The three plaintiffs—Brian Hall, John Kraus and former U.S. House Majority Leader Richard Armey—all had health-care plans they preferred to the coverage they were compelled to receive through Medicare.

In her ruling this week, the judge said that "neither the statute nor the regulation specifies that Plaintiffs must withdraw from Social Security and repay retirement benefits in order to withdraw from Medicare." Article I of the Constitution gives Congress sole power to legislate—so when agency rules conflict with federal statute, the statute takes precedence.

The Obama Administration argued that the case should be dismissed because the plaintiffs had not exhausted the available administrative remedies for challenging POMS. Judge Collyer rejected that notion, noting that one plaintiff had sought an administrative hearing but "received no response from the SSA for approximately three years." Exhaustion of remedies was therefore "futile." A three-year wait is precisely the kind of bureaucratic hassle, or deliberate stonewalling, that government is famous for.

Keep in mind that the plaintiffs are merely asking for the freedom to spend their own money for their own health insurance. With Medicare careening toward bankruptcy, letting seniors opt out could help save the taxpayers money. The plaintiffs argue, and reasonably so, that they have paid a lifetime of taxes into Social Security and shouldn't have those benefits denied merely because they are willing to pay for their own medical care. Social Security and Medicare are separate programs, and both are financed by separate payroll contributions.

The response of the Obama Administration to this lawsuit is revealing about its principles, as opposed to its rhetoric. President Obama says his plan for a "public option" wouldn't be coercive, saying that "If you like your health-care plan, you keep your health-care plan. Nobody is going to force you to leave your health-care plan." But here is a case where federal bureaucrats are using their power to force Medicare on seniors. Let's hope the courts restore a genuine right to choose.

from the Wall Street Journal, 2009-Sep-29, p.A25, by Philip K. Howard:

Why Medical Malpractice Is Off Limits
A few thousand trial lawyers have a lock on Democrats, who refuse to consider any legal reform.

Eliminating defensive medicine could save upwards of $200 billion in health-care costs annually, according to estimates by the American Medical Association and others. The cure is a reliable medical malpractice system that patients, doctors and the general public can trust.

But this is the one reform Washington will not seriously consider. That's because the trial lawyers, among the largest contributors to the Democratic Party, thrive on the unreliable justice system we have now.

Almost all the other groups with a stake in health reform—including patient safety experts, physicians, the AARP, the Chamber of Commerce, schools of public health—support pilot projects such as special health courts that would move beyond today's hyper-adversarial malpractice lawsuit system to a court that would quickly and reliably distinguish between good and bad care. The support for some kind of reform reflects a growing awareness among these groups that managing health care sensibly, including containing costs, is almost impossible when doctors go through the day thinking about how to protect themselves from lawsuits.

The American public also favors legal overhaul. A recent Common Good/Committee for Economic Development poll found that 83% of Americans believe that "as part of any health care reform plan, Congress needs to change the medical malpractice system."

Congress now realizes it can't completely stonewall legal reform. But what has unfolded so far is a series of vague pronouncements and token proposals—all of which assiduously avoid any specific ideas that might offend the trial bar. Here are some examples:

• On July 31, Rep. Bart Gordon (D., Tenn.), a Blue Dog Democrat, introduced an amendment to the House health-care reform bill (H.R. 3200) to fund pilot projects for liability reform, including pilots for "voluntary alternative dispute resolution."

What happened? According to the online newsletter Inside Health Policy, "While Gordon's amendment originally had seven policies that states could implement in order to receive federal funding, the other five suggestions were crossed out . . . due to the agreement with the trial lawyers."

• On Aug. 25, at a town-hall meeting in Reston, Va., Howard Dean, former chair of the Democratic National Committee, was asked why there is nothing in the health-care proposals about liability reform. Mr. Dean replied: "The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers. . . . And that is the plain and simple truth."

• On Sept. 9, President Obama made a commitment in a speech before Congress to fix the problem of defensive medicine. On Sept. 17, his secretary of Health and Human Services, Kathleen Sebelius, announced an initiative that will allow states to test a variety of programs to "put patient safety first and let doctors focus on practicing medicine." But in the initiative's statement of goals made no mention of defensive medicine, or of pilot projects such as special health courts. The funding for the initiative is a tiny $25 million. According to Katharine Seelye on the New York Times's Prescriptions blog, "the comparatively small budget seems commensurate with the administration's level of interest in the subject."

The upshot is simple: A few thousand trial lawyers are blocking reform that would benefit 300 million Americans. This is not just your normal special-interest politics. It's a scandal—it is as if international-trade policy was being crafted in order to get fees for customs agents.

Trial lawyers are agents, and their claims are only as valid as those they represent. They argue, of course, that they are champions of malpractice victims. As Anthony Tarricone, president of the trial lawyers association (called the American Association of Justice) put it: "Trial attorneys see first-hand the effects medical errors have on patients and their families. We should keep those injured people in mind as the debate moves forward." But under the current system, 54 cents of the malpractice dollar goes to lawyers and administrative costs, according to a 2006 study in the New England Journal of Medicine. And because the legal process is so expensive, most injured patients without large claims can't even get a lawyer. "It would be hard to design a more inefficient compensation system," says Michelle Mello, a professor of law and public health at Harvard, "or one which skewed incentives more away from candor and good practices."

Trial lawyers also suggest they alone are the bulwark against ineffective care, citing a 1999 study by the Institute of Medicine that "over 98,000 people are killed every year by preventable medical errors." But the same study found that distrust of the justice system contributes to these errors by chilling interaction between doctors and patients. Trials lawyers haven't reduced the errors. They've caused the fear.

An effective justice system must reliably distinguish between good care and bad care. But trial lawyers trade on the unreliability of justice. It doesn't matter much whether the doctor did anything wrong—a lawyer can always come up with a theory of what might have been done differently. What matters most is the extent of the tragedy and that a case holds potential for pulling on a jury's heartstrings.

Former Sen. John Edwards, for example, made a fortune bringing 16 cases against hospitals for babies born with cerebral palsy. Each of those tragic cases was worth millions in settlement. But according to a 2006 study at the National Institutes of Health, in nine out of 10 cases of cerebral palsy nothing done by a doctor could have caused the condition.

Unreliable justice is like pouring acid over the culture of health care. One in 10 obstetricians have stopped delivering babies, unable to pay malpractice premiums on the order of $1,000 per baby, according to the American College of Obstetricians and Gynecologists (ACOG). Some hospitals, including Methodist Hospital and Chestnut Hill Hospital in Philadelphia, have stopped delivering babies altogether; and the number of unnecessary caesarian sections have increased to the detriment of the health of mothers, according to the ACOG.

Trial lawyers scoff at the idea of special health courts. "First you have a court for doctors," a spokesperson for the trial lawyers, Linda Lipsen, recently said, "and then what? A court for plumbers?" But America has a long tradition of special courts for situations where expertise and consistency are important—bankruptcy courts, tax courts, workers compensation tribunals, vaccine liability tribunals, Social Security tribunals, and many more.

Trial lawyers often claim that any alternative to the current medical malpractice justice system, such as specialized health courts, will only make it more difficult for injured patients to seek justice. But that's why you start with a pilot project. If these courts are unfair they will be rejected. But if they succeed—that is, are fairer to patients and doctors—they could provide a solid foundation for rebuilding an effective, less costly health-care system than we have today.

Mr. Howard, a lawyer and author, is chairman of Common Good (www.commongood.org).

from Reason Magazine via the Wall Street Journal, 2009-Sep-21, by Damon W. Root:

Lochner and Liberty
Dissecting the Supreme Court case that unites the new regulatory czar and his conservative critics.

Last week, the Senate voted 57-40 to confirm Harvard and University of Chicago law professor Cass Sunstein as the new head of the Office of Information and Regulatory Affairs. This narrow vote brought an end to months of overheated and frequently misguided attacks on the would-be "regulatory czar," including a sensationalistic website operated by the American Conservative Union that falsely painted Sunstein as an out-of-control radical.

Too busy making outlandish claims about his positions on gun control and radio censorship, Sunstein's conservative critics have ignored one of the biggest problems that his ideas pose to limited constitutional government. Sunstein is one of the most influential modern critics of Lochner v. New York (1905), perhaps the Supreme Court's most famous decision defending economic liberty. So why aren't conservatives going after Sunstein for his opposition to this case? Because many of them don't like Lochner either.

At issue in the case was a provision capping working hours in New York's 1895 Bakeshop Act, which banned bakery employees from working more than 10 hours per day or 60 hours per week. In its 5-4 decision, the Court nullified this provision for violating the liberty of contract secured by the Due Process Clause of the 14th Amendment.

In his 1987 Columbia Law Review article "Lochner's Legacy," which is one of the most cited articles on the case from the last two decades, Sunstein criticized Lochner for preventing the state from using its lawful power "to help those unable to protect themselves in the marketplace." Similarly, in his 1998 book The Partial Constitution, Sunstein asserted that the Lochner Court "made the system of 'laissez faire' into a constitutional requirement."

But compare those claims with the actual text of the Lochner decision. As Justice Rufus Peckham wrote for the majority, while New York certainly possessed the power to enact valid health and safety regulations, the maximum hours provision of the Bakeshop Act "is not, within any fair meaning of the term, a health law." Not only was the baking trade "not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee," the limit on working hours involved "neither the safety, the morals, nor the welfare, of the public." In other words, "clean and wholesome bread does not depend on whether the baker works but ten hours per day or only sixty hours a week."

Indeed, as Peckham carefully explained, those sections of the Bakeshop Act regulating "proper washrooms and closets," the height of ceilings, floor conditions, and "proper drainage, plumbing, and painting," remained perfectly valid health and safety regulations; only the hours provision was struck down. Moreover, just three years later, in Muller v. Oregon, the Supreme Court unanimously upheld a state law limiting female laundry employees from working more than 10 hours a day. So much for Lochner making "'laissez faire' into a constitutional requirement."

In fact, as George Mason University legal scholar David Bernstein has thoroughly documented, the mainstream version of the Lochner story, which pits evil bosses against viciously exploited workers, bears zero resemblance to the historical evidence. The real origins of the Bakeshop Act lie in an economic conflict between unionized New York bakers, who labored in large shops, and their non-unionized, mostly immigrant competitors, who tended to work longer hours in small, old-fashioned bakeries. As Bernstein observed, "a ten-hour day law would not only aid those unionized workers who had not successfully demanded that their hours be reduced, but would also help reduce competition from nonunionized workers."

To put it another way, Lochner v. New York secured a fundamental right against arbitrary government interference while undercutting an act of naked economic protectionism. Yet Sunstein's right-wing foes haven't mentioned the case in their opposition to his appointment. Why? Perhaps it's because prominent leaders of the conservative legal movement also dislike Lochner.

In his 1991 bestseller The Tempting of America, for example, former federal appeals court Judge Robert Bork denounced Lochner as "the symbol, indeed the quintessence, of judicial usurpation of power," linking it to the Court's later rulings securing privacy and abortion rights under the 14th Amendment. Supreme Court Justice Antonin Scalia routinely attacks the Court's abortion and gay rights rulings for their Lochnerian judicial activism. And during his 2005 Senate confirmation hearings, future Chief Justice John Roberts declared, "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law."

These judicial conservatives aren't necessarily worried about restricting state regulatory power, but they are very leery of the Court protecting unenumerated rights—be it liberty of contract or privacy. Which matches nicely with Sunstein's claim that part of the problem with the Lochner Court was its "aggressiveness" and "judicial intrusions into the democratic process."

Yet both sides ignore the Ninth Amendment, which reads, "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Which means we possess more rights than any document could ever list, including the right to earn an honest living free from arbitrary and unnecessary regulation. They also both ignore the Privileges or Immunities Clause of the 14th Amendment, which was specifically designed to protect both civil rights and economic liberties against predatory state governments.

That's the real problem with Cass Sunstein—and with the conservatives who share his hostility towards Lochner. They don't give economic liberty its constitutional due.

Mr. Root is an associate editor at Reason magazine.

from the Wall Street Journal, 2009-Oct-10, by Jim Demint:

from the Associated Press, 2009-Sep-21, by Larry Neumeister:

Democratic fundraiser indicted in NY

New YORK — Federal prosecutors have charged a wealthy fundraiser for Hillary Rodham Clinton and other top Democrats in an alleged $292 million Ponzi scheme that spanned more than a decade, saying he used some of the proceeds to support election campaigns.

In an indictment returned Monday in U.S. District Court in Manhattan, Hassan Nemazee is charged with bank fraud and aggravated identity theft.

"For more than 10 years, Hassan Nemazee projected the illusion of wealth, stealing more than $290 million so that he could lead a lavish lifestyle and play the part of heavyweight political fundraiser," U.S. Attorney Preet Bharara said in a statement. "Today's indictment exposes the sheer brazenness of Nemazee's schemes and marks the end of his decade of deception."

He used some of the proceeds of the fraud to make donations to the election campaigns of federal, state and local candidates as well as to political action committees and charities, prosecutors said. They didn't name the candidates or groups.

Nemazee's lawyer did not immediately return a call for comment Monday.

The indictment boosts the allegations against the 59-year-old Manhattan resident, who was arrested in August on charges that he used forged documents to obtain a $74 million loan. Prosecutors now allege that he fraudulently obtained loans worth hundreds of millions of dollars from three banks between 1998 and this year.

They said he used fake documents and signatures to show the banks that he had hundreds of millions of dollars worth of collateral.

Prosecutors said Nemazee also used some of the money to buy property in Italy and to make monthly maintenance payments on properties in Manhattan and Katonah, N.Y.

The government is seeking $292 million in forfeitures against Nemazee, including his interest in five properties, 16 corporate entities and a hedge fund, 14 securities accounts, 32 bank accounts, a 2008 Maserati Quattroporte automobile and a 2007 Cessna aircraft.

Nemazee served as national finance chairman for Clinton's 2008 presidential campaign and later raised money for President Barack Obama after her primary defeat. He also was Sen. John Kerry's finance chairman in New York for his 2004 bid for president.

Nemazee is under house arrest as part of a $25 million bail agreement. If convicted, he could face 30 years in prison on each of three counts of bank fraud and a mandatory two-year prison term on the aggravated identity theft charge.

from NewsMax.com, 2009-Sep-24, by James Hirsen:

ACORN Will Regret Filing Lawsuit

ACORN has announced its lawsuit against filmmakers James O'Keefe and Hannah Giles, and columnist Andrew Breitbart for what it alleges was "illegal videotaping" of ACORN employees in Baltimore. So the head of the group has gone from blasting the filmmakers, then praising them for helping ACORN uncover corruption, to now, suing them.

The suit was filed in the Circuit Court in Baltimore where sympathetic juries are available. In addition, ACORN wants preliminary and permanent injunctions to stop any other pesky videotapes from coming out. It also is seeking damages that could be as high as $7 million.

The video shows now-fired ACORN employees giving tax advice to O'Keefe and Giles, who are posing, as their minimal costume budget will allow, as a pimp and a prostitute.

ACORN has a dream team of four major mouthpieces: Andy Freeman, A. Dwight Pettit, Arthur Schwartz, and C. Justin Brown.

The group and their attorneys are going to regret filing this lawsuit.

So far, ACORN employees have been featured on videos assisting criminal behavior in three other states and Washington, D.C. This suit, by necessity, is only for the Maryland recordings.

ACORN is going to try to nail the defendants on Courts and Judicial Proceedings Code sections 10-402(a) and 10-410, which require two-party consent to all electronic surveillance.

But the suit will open ACORN up to cross-complaints and a broad discovery process that will include the production of e-mails, correspondence, memos and internal documents, as well as depositions of employees. Haven't these people ever heard of Whitewater and Ken Starr?

O'Keefe and company will have a powerful procedural move to make.

Because the ACORN employees and the defendants are from different states, the case can be removed to federal court. That court is in the conservative Fourth Circuit, giving the defendants a place to win on the appeal of rulings and even the final judgment.

But the ACORN lawsuit may get tossed before that ever happens. The only cause of action here is for a violation of the Maryland wiretapping statute. The suit says that O'Keefe and Giles, working together with Breitbart, exposed an “oral communication” using an electronic device, which could be a violation of the act. But the statute says that “oral communication” in another section, 10-401(2)(i) is “any conversation or words spoken to or by any person in private conversation.”

Under the law, “private” means that at least one of the parties to the conversation must have had a reasonable expectation of privacy at the time and place where the conversation was recorded.

But the ACORN employees would not have any reasonable expectation of privacy in what was said to those who entered their offices ostensibly to seek services, according to a host of legal precedents.

Because these conversations took place in a business office between ACORN employees and two “customers,” they are not “private conversations” as defined under the Maryland Wiretap Act.

Add to this the effect of the First Amendment because O'Keefe, Giles, and Breitbart are media defendants, and what you have in scholarly law professorial terms is called . . . a loser.

But as we know from watching our courts, lots of judges on the bench like to ignore the law and turn losers into winners.

A former ACORN board member, Marcel Reid, who was kicked out of the organization last year for trying to look into the group's accounting, summed the situation up well: “If we'd known all it took was a half-naked 20-year-old, we'd have done this a year and a half ago.”

from the Chicago Tribune, 2009-Sep-20, by Charles Lipson:

Independent prosecutor for ACORN

ACORN is in very deep, very public trouble, and the U.S. attorney general should appoint an independent prosecutor to investigate. What we know so far is due entirely to two amateur reporters, James E. O'Keefe III, 25, and Hannah Giles, 20, who managed to videotape a web of corrupt practices in ACORN offices. Dressed as a pimp and prostitute, O'Keefe and Giles walked into ACORN offices from New York to California and simply asked for business advice. ACORN officials were happy to provide it and were secretly recorded explaining exactly how to evade the law and scam the government. The tapes were riveting. Fox News rolled out a new one each night for a week, creating a firestorm of outrage and a burgeoning political scandal.

ACORN employees, without raising an eyebrow, much less calling the police, explained how the young sex workers could label themselves "performance artists," underreport their income, evade taxes, fraudulently buy a house to ply their trade, and, worst of all, import underage girls from Central America to use as child prostitutes. One ACORN employee helpfully explained that the teenagers would even be tax-deductible since they would be "dependents," living in the pimp's house. Some states, led by California, are saying they will investigate. But this is a national scandal and there ought to be a full-scale national inquiry. To ensure impartiality -- and the appearance of impartiality -- political appointees at the U.S. Department of Justice should recuse themselves. This case demands an independent federal prosecutor.

Independent prosecutors should not be appointed lightly. But in this case, there are good reasons why Atty. Gen. Eric Holder and other political appointees in the Justice Department should step aside. First, although no allegations have yet touched the Obama campaign, ACORN did have significant ties to the campaign and other progressive causes. Published reports show that ACORN and its subsidiaries received some $800,000 from the Obama campaign to get out the vote. Second, ACORN is intimately tied to the Service Employees International Union, one of President Barack Obama's most powerful and vocal supporters.

ACORN's close ties to the progressive movement and Democratic Party mean that there will be little public confidence if Holder decides not to pursue an ambitious investigation and ultimately prosecute.

Ironically, ACORN's chief executive officer, Bertha Lewis, strengthens the case for an independent prosecutor with her robust defense of the organization. FOX News, she says, is pursuing her group solely for political reasons. They oppose ACORN, she says, because it is associated with progressive politics, labor organizing and the Obama administration's health-care initiative. Unfortunately for ACORN, Lewis' charges also mean that if the Obama administration decides not to prosecute or to indict only low-level employees, the public will wonder if they are seeing a political defense by ACORN's friends, a coverup rather than a fair-minded, independent decision by the Justice Department.

Holder has compounded these concerns with two recent decisions. In New Mexico, federal attorneys apparently recommended high-level prosecutions in the pay-for-play scandal swirling around Gov. Bill Richardson. Holder's office overrode them and dropped the case. Holder also decided to drop the voter intimidation case against the New Black Panther Party in Philadelphia, where thugs were caught on tape brandishing clubs outside a voting precinct. In both cases, Holder has refused to explain his actions.

After these decisions and Holder's silence about them, there is simply no reason to hand him another high-profile case with political ramifications. What we have seen on tape cries out for a serious, independent investigation to determine if ACORN and its affiliates are a criminal enterprise, whether they have spent federal grants lawfully, whether they helped taxpayers file fraudulent returns, and whether they violated laws prohibiting tax-exempt organizations from engaging in partisan politics. These are big questions, and the public needs to know that Washington's answers are fair and impartial.

Charles Lipson is a political science professor at the University of Chicago.

from the Wall Street Journal, 2009-Aug-29, p.A12:

Health-Care Secrets
Chris Dodd keeps his Senate bill under wraps.

President Obama has promised a "new era of transparency" in Washington, so perhaps he should talk to the Senate about getting with his program. On July 15, six weeks ago, the Senate Health, Education, Labor and Pensions Committee passed an amended $1 trillion health-care bill, with acting Chairman Chris Dodd calling it a "historic achievement." Too bad the committee won't reveal this history even to other Senators, much less to the public.

Three weeks ago Republicans on the committee wrote Mr. Dodd "to reiterate our request for a full copy of the bill as amended, in the four-week mark-up." Mr. Dodd has refused to comply. The Senate bill that is available on the committee Web site is 790 pages long. While that is some 300 pages shorter than the House health bill, that's in part because it doesn't include nearly 200 amendments that passed when the committee redrafted the bill. Amended sections of the bill might as well be written in invisible ink.

The whole process was so haphazard that at one point during the committee mark-up Barbara Mikulski, the Democrat from Maryland, declared: "Giving me language on little pieces of paper on which I'm going to commit the sacred fortunes and honor of the United States for decades, this is not the way to go. We can't do this on the backs of envelopes."

We called Mr. Dodd's committee office last week to ask why the bill isn't posted, and a spokesman explained that it is still being "worked on." Will it be ready by October? "Don't count on it," the staffer said.

Meanwhile, President Obama has been saying that critics are "misrepresenting" his proposals. But who's to know what's reality and what's a myth when the public and Members of Congress aren't able to read a bill that would restructure one-seventh of our economy. We don't have any idea what the bill will cost or how many people it will provide insurance for, because the Congressional Budget Office can't score it. No wonder the public is increasingly skeptical of this entire exercise.

from the Wall Street Journal, 2009-Aug-9, by John S. Baker and Elliott Stonecipher:

Our Unconstitutional Census
California could get nine House seats it doesn't deserve because illegal aliens will be counted in 2010.

Next year's census will determine the apportionment of House members and Electoral College votes for each state. To accomplish these vital constitutional purposes, the enumeration should count only citizens and persons who are legal, permanent residents. But it won't.

Instead, the U.S. Census Bureau is set to count all persons physically present in the country—including large numbers who are here illegally. The result will unconstitutionally increase the number of representatives in some states and deprive some other states of their rightful political representation. Citizens of “loser” states should be outraged. Yet few are even aware of what's going on.

In 1790, the first Census Act provided that the enumeration of that year would count “inhabitants” and “distinguish” various subgroups by age, sex, status as free persons, etc. Inhabitant was a term with a well-defined meaning that encompassed, as the Oxford English Dictionary expressed it, one who “is a bona fide member of a State, subject to all the requisitions of its laws, and entitled to all the privileges which they confer.”

Thus early census questionnaires generally asked a question that got at the issue of citizenship or permanent resident status, e.g., “what state or foreign country were you born in?” or whether an individual who said he was foreign-born was naturalized. Over the years, however, Congress and the Census Bureau have added inquiries that have little or nothing to do with census's constitutional purpose.

By 1980 there were two census forms. The shorter form went to every person physically present in the country and was used to establish congressional apportionment. It had no question pertaining to an individual's citizenship or legal status as a resident. The longer form gathered various kinds of socioeconomic information including citizenship status, but it went only to a sample of U.S. households. That pattern was repeated for the 1990 and 2000 censuses.

The 2010 census will use only the short form. The long form has been replaced by the Census Bureau's ongoing American Community Survey. Dr. Elizabeth Grieco, chief of the Census Bureau's Immigration Statistics Staff, told us in a recent interview that the 2010 census short form does not ask about citizenship because “Congress has not asked us to do that.”

Because the census (since at least 1980) has not distinguished citizens and permanent, legal residents from individuals here illegally, the basis for apportionment of House seats has been skewed. According to the Census Bureau's latest American Community Survey data (2007), states with a significant net gain in population by inclusion of noncitizens include Arizona, California, Florida, Illinois, Nevada, New Jersey, New York and Texas. (There are tiny net gains for Hawaii and Massachusetts.)

This makes a real difference. Here's why:

According to the latest American Community Survey, California has 5,622,422 noncitizens in its population of 36,264,467. Based on our round-number projection of a decade-end population in that state of 37,000,000 (including 5,750,000 noncitizens), California would have 57 members in the newly reapportioned U.S. House of Representatives.

However, with noncitizens not included for purposes of reapportionment, California would have 48 House seats (based on an estimated 308 million total population in 2010 with 283 million citizens, or 650,000 citizens per House seat). Using a similar projection, Texas would have 38 House members with noncitizens included. With only citizens counted, it would be entitled to 34 members.

Of course, other states lose out when noncitizens are counted for reapportionment. According to projections of the 2010 Census by Election Data Services, states certain to lose one seat in the 2010 reapportionment are Iowa, Louisiana, Massachusetts, Michigan, New Jersey, New York, Ohio and Pennsylvania; states likely (though not certain) to lose a seat are Illinois, Minnesota, Missouri, and Ohio could lose a second seat. But under a proper census enumeration that excluded illegal residents, some of the states projected to lose a representative—including our own state of Louisiana—would not do so.

The census has drifted far from its constitutional roots, and the 2010 enumeration will result in a malapportionment of Congress.

In the 1964 case of Wesberry v. Sanders, the Supreme Court said, “The House of Representatives, the [Constitutional] Convention agreed, was to represent the people as individuals and on a basis of complete equality for each voter.” It ruled that Georgia had violated the equal-vote principle because House districts within the state did not contain roughly the same number of voting citizens. Justice Hugo Black wrote in his majority opinion that “one man's vote in a congressional election is to be worth as much as another's.” The same principle is being violated now on a national basis because of our faulty census.

The Census Bureau can of course collect whatever data Congress authorizes. But Congress must not permit the bureau to unconstitutionally redefine who are “We the People of the United States.”

Mr. Baker teaches constitutional law at Louisiana State University. Mr. Stonecipher is a Louisiana pollster and demographic analyst.

from the Wall Street Journal, 2009-Aug-21, by Katherine Mangu-Ward:

Transparency Chic

Newborn babies have their own blogs and grandmothers are on Facebook. We Google potential dates. Privacy is dead. But one kind of information is still cozily locked away, safe from prying eyes: the law. President Obama may have come to Washington promising greater transparency, but progress has been less than impressive.

While the feds stumble toward openness, geeks and developers who made oversharing a way of life are bringing their can-do attitude to government transparency. Can't find what you're looking for on Regulation.gov? Try the new, user-friendlier OpenRegs.com. Frustrated by the terrible interface of Obama's Recovery.gov? Check out the easily-searchable Recovery.org.

But with the possible exception of the ever-leaky CIA, no aspect of government remains more locked down than the secretive, hierarchical judicial branch. Digital records of court filings, briefs and transcripts sit behind paywalls like Lexis and Westlaw. Legal codes and judicial documents aren't copyrighted, but governments often cut exclusive distribution deals, rendering other access methods a bit legally questionable. Supreme Court decisions are easy to get, but the briefs and decisions of lower courts can be hard to come by.

Last week, a team from Princeton's Center for Information Technology Policy took a pot shot at legal secrecy, setting in motion a scheme to filch protected judicial records and make them available for free online. One of the developers, Harvard's Stephen Schultze, says he went digging for some First Amendment precedent last fall and was shocked by the outdated technology he found. Knowing that "there's a certain geek cache to openness projects these days," Mr. Schultze and Princeton computer science grad students Tim Lee and Harlan Yu went straight to work.

Their almost-definitely-probably lawful system works like this: Right now, lawyers, nonprofits and researchers who use PACER, the clunky database maintained by the federal court system, must hand over their credit-card numbers and pay eight cents a page for records. Eight cents a page might not seem like much until you realize that the system isn't keyword searchable.

That's right: In 2009, judicial records in the U.S. are essentially unsearchable. Digital records—with confidential personal information (theoretically) redacted by attorneys—must be downloaded in unwieldy, badly labeled chunks. This is incomprehensible to anyone under 30. But it's a sad fact of life for those who pay lawyers hundreds of dollars an hour to dig up what would could be Googled in any other field.

Messrs Schultze, Lee and Yu whipped up a sleek little add-on to the popular Firefox Internet browser called RECAP (PACER spelled backward). Legit users of the federal court system download it. Then each time they drop eight pennies, it deposits a copy of the page in the free Internet archive. This data joins other poached information, all of which is formatted, relabeled and made searchable—the kind of customer service government tends to skimp on. Users can even see what has already been liberated while within the government system, a stylish and subversive touch. This week, as RECAP picked up speed, various court offices got skittish and began sending out emails acknowledging the project's legality, but "strongly discouraging" its use anyway.

The dream of state-provided transparency goes back as least as far as Abraham Lincoln, who established the Government Printing Office, which disseminates documents like the Congressional Record, on his first day in office in 1861. PACER itself was cutting-edge in 1988 when it was introduced as a dial-up service. It simply failed to keep up with the times.

Fortunately, as America's final preteen holdouts signed up for MySpace, geeks got itchy for the next big thing. Cultural and political conditions nudged them toward government transparency. Tech celebs like Craigslist founder Craig Newmark and Wikipedia founder Jimmy Wales have flocked to the Sunlight Foundation, which uses the Internet to improve meaningful access to government. Developer Tim Lee says "there's just a ton of low-hanging fruit. The hard part is getting the data out. The fun part is doing stuff with it."

With geeks like these on the job, the time when a farm bill has 31,452 "friends" may not be far off. (Of course, 31,449 of them will be farmers.) Judicial stats may soon appear with scores from the day's games at a sports-and-courts betting site. Someday your government may have as little privacy as you do.

—Ms. Mangu-Ward is a senior editor at Reason magazine.

from ABCNews.com, 2009-Sep-24, by Pierre Thomas:

Exclusive: FBI Says Corrupt Border Officials Accepting Bribes Expose U.S. to Terrorist Risk
FBI Worries Corrupt Border Officials Could Let in Terrorists Without Detection

The Federal Bureau of Investigation worries that corrupt U.S. officials at the nation's border crossings are exposing Americans to serious risk, and are stepping up efforts to root those officials out.

With evidence of corrupt U.S. border officials allowing illegal immigrants to enter the country in exchange for bribes, the FBI is concerned terrorists or materials that could be used in a terrorist attack might also slip through.

"If you're a corrupt border official, and you're allowing illegal immigrants to come into the country, you're not going to know who you're letting in," Kevin L. Perkins, assistant director of the Criminal Investigative Division for the FBI, told ABC News.

In one instance at the U.S.-Mexico border, FBI video surveillance obtained by ABC News caught a truck full of illegal immigrants pulling up to Customs and Border Protection officer Michael Gilliland, and being waved through his border inspection lane for $100,000, officials said.

And in Texas, an undercover FBI operation allegedly caught a deputy sheriff in the act.

"You can either pay me here or follow me all the way to Petula and you can pay the judge," the deputy sheriff told an undercover FBI agent posing as a Mexican national, despite the agent having broken traffic laws.

"So the fine is $150 here," the deputy sheriff was recorded as saying.

"You don't have to worry about court or anything," he said, after the undercover agent handed over $150 in cash.

"I don't worry about nothing?" the agent asked.

"No," the deputy sheriff replied.

The FBI says corrupt border officials willing to betray their badge for a price represent a potentially grave national security threat.

from the Times of London, 2009-Sep-5, by Frances Gibb:

Transsexual killer wins battle to serve life sentence in a women's jail

A transsexual killer who was born a man has won a legal battle to be transferred to a women's prison.

The prisoner, who was also convicted of attempted rape, will be moved to a women's jail within weeks after a High Court ruled that the refusal by Jack Straw, the Justice Secretary, to transfer her violated her basic human rights and increased her long-term risk to society.

The prisoner is in her 20s and serving a life sentence for manslaughter and attempted rape.

She has had her womanhood recognised by law and her birth certificate has been amended accordingly, the High Court in London was told. She has had hair on her face and legs permanently removed by laser and has developed breasts after hormone treatment, but is forbidden from wearing skirts or blouses, or more than “subtle” make up, at the men's prison where she is held on a wing for vulnerable prisoners.

Describing her as “a woman trapped inside a man's body”, her barrister, Phillipa Kaufman, said the final step to her achieving full womanhood is gender reassignment surgery - but she had been told she cannot have it while in a men's prison.

Doctors have refused even to consider her for the operation unless she fulfills the “living role requirement” - living as a woman for an extended period; so she has no hope of getting the surgery she so desperately wants unless moved to a women's jail.

The barrister told Judge David Elvin, QC, that, although the woman has now served her minimum jail term, she has been told by the Parole Board that she remains an unnacceptable risk to the public, still has “a great deal of work to do” and is “nowhere near release”.

That, Miss Kaufman argued, was a direct result of her intense frustration at being unable to have gender reassignment surgery.

The prisoner, dressed in a dark blue blouse and striped jacket and wearing gold earrings, listened by video link as Miss Kaufman told the judge: “At the moment, she lives as a woman amongst men on a vulnerable prisoners' unit and she can't wear what she wants or more than subtle make up. They are an important statement of her femaleness.”

Oliver Sanders, for the Justice Department and the prison authorities, argued that the woman would be no more likely to be accepted by inmates at a female prison and that, if moved, she would have to spend long periods in segregation, at an extra cost of £80,000 per year.

But today Judge Elvin ruled that the Justice Department's refusal to transfer her to a women's jail amounted to a violation of Article 8 of the European Convention on Human Rights, which enshrines the right to respect for privacy.

Regardless of any extra cost involved, the judge said that to block her progress towards full gender reassignment surgery was irrational and would only increase her risk to the public.

After the judge's ruling, Miss Kaufman told the judge that the woman is now expected to be moved to a women's jail within a few weeks.

The transsexual prisoner, referred to in court only as “A”, was convicted of manslaughter and jailed for five years after smothering her boyfriend with a pillow and strangling him with a pair of tights.

Her life sentence tariff, the minimum period she must serve before being considered for parole, expired in 2007. "A" was diagnosed as suffering from gender dysphoria and had been aware of her condition from an early age, the judge said.

The woman said in her evidence that when her gender was legally recognised it was “a reflection of how it should have been from the start”.

The judge said that her detention in a men's jail had both scotched her desire to live fully “in role” as a woman - and thus qualify for a full gender reassignment - and had also had a “serious adverse effect” on her ability to take part in work aimed at reducing her risk status and moving towards release.

The judge issued a mandatory order requiring Mr Straw to transfer “A” to a women's prison.

from the Washington Examiner, 2009-Jan-22, by Quin Hillyer:

Part One: Eco-inventor wins victory in federal court case

Krister Evertson is in jail in an absurdly convoluted legal saga that began with a misunderstanding of the most basic sort: He didn't know that shipping by “ground” transportation from Alaska still usually entails an airplane flight.

In the early years of the current decade, Evertson was splitting his time between Wasilla, Alaska, where his aging mother lived and where he mined for gold, and Salmon, Idaho, where his sister lived.

In Salmon, Evertson spent $100,000 of his family's money seeking to create a fuel cell that would use pure sodium, mixed with borax (yes, the detergent ingredient), to create clean energy without polluting the environment.

Pure sodium is a metal that, when in direct contact with a certain amount of water, can explode. But it can be easily bought online when it is packaged correctly, that is, surrounded by an oil solution that protects against water.

Evertson had legally purchased 10 metric tons of sodium from a dealer in China.

But he ran out of money in Idaho before his experiments bore fruit, so he carefully stored all of his materials, machines, and byproduct in stainless steel tanks, with much of the sodium either surrounded by oil and plastic or in its original, legal packaging from China.

He then moved his materials half a mile down the road to the Steel and Ranch Supply Facility, an industrial supply company in Salmon owned by a friend, and paid rent in the form of two sacks of 1,000 pounds each of borax, which his friend could re-sell for a profit.

Evertson said he planned to return once he raised enough money to re-start his experiments. He moved to his mother's house in Wasilla, Alaska, taking a few dozen pounds of sodium with him, and began selling the sodium on E-bay to raise funds to finance a new gold-mining expedition.

Then on May 27, 2004, federal agents in black SUVs and waving assault rifles, appeared out of nowhere, forced Evertson's truck off the road, and arrested him. He was charged for shipping sodium he had sold on E-Bay by air, which is understandably forbidden as a result of its potential explosiveness.

Evertson knew it was illegal to ship the material by air, which is why he had packaged it according to all available guidelines, and he had even checked the “ground transportation” box on the bill.

What he didn't know was that in the UPS system, ground transportation from Alaska actually is carried by air. That meant Evertson should have put a special sticker on the package of sodium routing it for special “ground” treatment.

Federal authorities could have treated the incident as a simple civil violation, but instead chose to charge Evertson with a serious criminal offense.

Two years later, an Alaska jury aquitted Evertson of all charges.

Part Two: Woe to the man who beats federal prosecutors

When federal agents first interviewed Krister Evertson about his shipping sodium he had sold on E-Bay via UPS, he described his fuel cell experiments back home in Idaho in great detail.

Federal authorities in Alaska sent word to the Environmental Protection Agency (EPA) in Idaho, which promptly dispatched its agents to the industrial supply facility in Salmon where Evertson had stored his fuel cell materials.

The EPA agents treated the materials like a Superfund site. They cut open his steel drums, cleared away a perimeter – and, by their own account, spent some $430,000 disposing of every bit of Evertson's painstakingly assembled experiments.

“They never told me; they just went and did it,” Evertson told The Washington Examiner in a telephone interview from his Oregon prison.

“It's like Chicken Little: They run around like the sky is falling…. It's like the perfect storm of misunderstanding and unfounded fear and they never asked me about it. I could have told them in one minute exactly what to do with it,” he said.

Despite his acquittal in Alaska, federal authorities filed new charges against Evertson in Idaho for allegedly illegally transporting his materials the half mile from his home to the storage facility and improperly disposing of “hazardous” waste, all based on strained readings of EPA regulations.

Evertson claimed he had stored the materials properly and they were perfectly secure.

“My expert witness said the stainless steel container could safely contain the intermediate process stream indefinitely, that means forever. The stainless steel was 3/8 of an inch thick. I bought it from the Long Beach, California, Naval Yard. It was completely enclosed…. I could have neutralized all of it for $200,” Evertson said.

Marc Callaghan, a government witness, testified that he tried to speak with Evertson, but claimed that “Mr. Evertson would not speak to me.”

But Callaghan's assertion seems to conflict with the FBI's initital description of Evertson as eager to discuss his fuel cell activities. Strangely transcript of Evertson's second trial shows the judge did not ask prosecutors for elaboration on Callaghan's assertion.

Never mind that Evertson had clearly saved the material for future use rather than abandoning it. Never mind that it would be potentially dangerous only if taken out of the storage materials Evertson had so carefully constructed.

And never mind, finally, that, in the words of Evertson's appellate brief, none of the materials were “discharged into the air, land or sea,” and the government failed to produce any evidence “that the defendant intended this to happen.”

Indeed, the brief notes, “the EPA witness, Marc Callaghan, testified that the materials became hazardous waste [only] when the EPA disposed of them.”

Even so, on Oct. 22, 2007, the Idaho jury found Evertson guilty of the illegal disposal charge. He was sentenced to 21 months in federal prison.

Evertson has appealed, claiming the jury was improperly instructed by the trial judge on multiple counts that, if corrected, would have materially changed the jury's understanding, and thus its verdict.

Evertson's appeal brief sums up the absurdity of the whole case by quoting from a decision of the U.S. Court of Appeals for the DC Circuit in the year 2000: “To say that when something is saved it is thrown away is an extraordinary distortion of the English language.”

Justice Department spokesman Charles Miller said prosecutors would have no comment because the case in on appeal. No hearing date has been set.

from the Wall Street Journal, 2009-Jul-15, by Philip K. Howard:

Health Reform Requires Lawsuit Reform
But tort lawyers are the one special interest Democrats won't offend.

Containing health-care costs is impossible under the current legal structure. That fact has to be addressed if President Barack Obama is to create an affordable health-care system that is accessible to everyone.

Every incentive in the system now is to do more -- that's how doctors get paid and that's how doctors get protected from lawsuits. Billions of dollars are wasted in "defensive medicine." Bureaucracy built up over decades diverts resources from patient care to mindless compliance. Forms are everywhere.

The only path to affordable health care is a basic overhaul to realign incentives. The new ideas are out there -- for example, creating a reimbursement model that rewards effective care, and restoring trust in the reliability of justice by creating special health courts.

Overhaul, however, requires letting go of the old ways. Congress is perfectly willing to come up with new programs and introduce new taxes to pay for ever-rising health-care costs. But Congress seems unwilling to make hard choices.

Like a crash in slow motion, you can see Congress tumbling down toward the lowest common denominator -- a reform package that will do little to contain costs, but will offend the least number of special interests.

Studies have repeatedly demonstrated that the current ad hoc system of justice, with verdicts that vary widely from one jury to the next, has spawned a culture of legal fear and self protection. Studies also show that the system fails injured patients -- a claim takes an average of five years to resolve and nearly 60 cents out of every dollar spent in the malpractice system ends up going to lawyers or administrative costs.

That's why most of the important health-care constituencies, from the American Medical Association to AARP, favor creating pilot projects for special health courts. Mr. Obama has recently talked about the need "to explore a range of ideas about how to . . . scale back the excessive defensive medicine."

But one interest group hates the idea. You guessed which one. Sen. Mike Enzi (R., Wy.) discovered just how powerful the trial lawyers are when he proposed creating health court pilot projects. His proposal was only to permit experiments, not broad-scale tort reform, and it had been developed with Sen. Max Baucus (D., Mt.), chairman of the Finance Committee. But when Mr. Enzi offered this modest proposal, other members of the Senate Committee on Health, Education, Labor and Pensions killed the idea, declaring that the Constitution requires juries to be the ultimate decision maker in civil lawsuits.

That's not true. Special courts without juries are common in America and include courts for bankruptcy, tax disputes, workers compensation and more. America has a long history of using expert courts when there is a need for expertise and consistency. It's hard to imagine any area that needs consistent justice more than health care.

The senators weren't willing to discuss the merits of an expert court. The jury, as Sen. Sheldon Whitehouse (D., R.I.) put it, is "our protection against tyranny of the majority." But that's not true either, at least not for civil cases. In private lawsuits, juries have the limited role of deciding disputed issues of fact. "What is the object of the jury trial?," asked John Marshall in the debates over ratifying the Constitution. Marshall, the future chief justice of the U.S. Supreme Court, then answered his own question: "To inform the court of the facts." It is the judge who is tasked with drawing legal boundaries that determine who can sue for what. Those boundaries are precisely what's missing in deciding whether doctors have abided by accepted standards of care.

At the hearing, Mr. Whitehouse warned that "we take enormous risks as a country if we interfere with the institution of trial by jury." Actually, the enormous damage of unreliable justice is visible all around American society -- in playgrounds stripped of athletic equipment (contributing to the epidemic of obesity), in schools where disorder is the norm because of loss of teacher authority, and in a health-care system that squanders resources practicing unnecessary defensive medicine.

Fear is the tool not of leadership but of the status quo. It could hardly be easier to scare people into keeping programs and institutions the way they are. But that only delays the day of reckoning. Congress is mortgaging our children's future. Cost containment must be a goal. Protecting trial lawyers is not the solution.

Mr. Howard, a lawyer and author, is chairman of Common Good (www.commongood.org).

from the Wall Street Journal, 2009-Jul-25, p.A12:

Born to Take
What makes New Jersey politics so special?

Tony Soprano may be off HBO, but his imitators are apparently still alive and well and living in New Jersey. On Thursday, federal agents arrested 44 people, including at least 19 current or former New Jersey public officials, on corruption and money-laundering charges.

In most states, the arrests of more than a dozen government officials, including three prominent mayors, would elicit shock and even disbelief. In New Jersey, long-suffering residents have learned to expect the worst from their “public servants.” Still, even the most skeptical citizen might have hoped that former U.S. Attorney and current GOP gubernatorial candidate Chris Christie had drained the swamp when he prosecuted more than 130 Jersey politicos this decade. Turns out that the alleged rot runs even deeper in a state long synonymous with graft, as if anyone is really surprised.

Theories abound as to what makes New Jersey so special. The Wall Street Journal's Law Blog asked two local college professors to explain the state's long and undistinguished history of political corruption. Joseph Marbach, dean of the College of Arts and Sciences at Seton Hall, says that career politicians became established in Jersey earlier than in other places, and since the pay was modest, “a sense developed that a certain amount of graft was acceptable.”

Brigid Harrison, a professor of politics and law at Montclair State, says that old political machines have proven extremely durable, and that today the two big powers are the Democratic Party branches in Hudson County near New York and Camden County near Philadelphia. “It's like the Mafia,” she told the Law Blog. “If you take out one family, the other family takes up more authority.” She's predicting a power shift to Camden since members of the Hudson crew were pinched by the FBI.

We'd add that the opportunities for corruption multiply in proportion to the power and size of government. According to the Tax Foundation, New Jersey had the worst business tax climate among the 50 states in 2008 and 2009, the highest state and local tax burden in the country, and a top marginal income tax rate of nearly 11%. The state has 566 local government authorities with the power to impose a mind-numbing array of taxes, fees, regulations, edicts and ordinances.

Less power in the hands of government would mean fewer opportunities and fewer temptations for the pols to do business with Tony Soprano. If Mr. Christie really wants to change the state, as opposed to merely changing offices, his campaign theme is ready to order.

from the Wall Street Journal, 2009-May-27:

The 'Empathy' Nominee
Is Sonia Sotomayor judically superior to 'a white male'?

In making Sonia Sotomayor his first nominee for the Supreme Court yesterday, President Obama appears to have found the ideal match for his view that personal experience and cultural identity are the better part of judicial wisdom.

This isn't a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged. In the President's now-famous word, judging should be shaped by "empathy" as much or more than by reason. In this sense, Judge Sotomayor would be a thoroughly modern Justice, one for whom the law is a voyage of personal identity.

"Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers," Mr. Obama said yesterday in introducing Ms. Sotomayor. "It is experience that can give a person a common touch of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court."

In a speech published in the Berkeley La Raza Law Journal in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. "Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases," she declared. "I am . . . not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

We quote at such length because, even more than her opinions, these words are a guide to Ms. Sotomayor's likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.

But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor's belief is that a "Latina woman" is by definition a superior judge to a "white male" because she has had more "richness" in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the "richness" of her experience comes to believe it should be.

There are signs of what this means in practice in her lower court decisions. One of them is Ricci v. DeStefano, involving the promotion of white firefighters in New Haven and now pending before the Supreme Court. In the case, heard by a three-judge panel including Judge Sotomayor, the city refused to certify promotion exams when the results of the exam would have elevated 18 white firefighters and one Hispanic -- an outcome that would have underrepresented minorities. The firefighters sued, charging discrimination.

After the three judge panel issued a brief opinion repeating the district court's decision, the appeals court declined to rehear the case en banc, an outcome which infuriated Ms. Sotomayor's colleague and fellow Clinton appointee Jose Cabranes. In a dissent joined by five of his colleagues, Judge Cabranes criticized the slip-shod handling of the case by a majority that lacked the courage of its racial preference convictions. The "perfunctory disposition" of the opinion, he noted, "lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal."

Judge Cabranes added that the discrimination issues raised by the case were "worthy of review" by the Supreme Court, which took the case and may well overturn the Sotomayor panel's ruling. The case raises the question of whether a judge with an avowed commitment to applying her own "experience" to cases was disinclined to an argument made by those not sharing that personal experience.

Or consider the result last year in Knight v. Commissioner, in which the Supreme Court unanimously upheld her ruling in a tax case involving individual tax deductions, even as her reasoning drew a rebuke from Chief Justice John Roberts. The Second Circuit opinion "flies in the face of the statutory language," he wrote for the Court.

In April, the Supreme Court overturned 6-3 her 2007 ruling in Riverkeeper v. EPA in which she found that the EPA could not consider cost-benefit analysis in judging whether companies need to upgrade to the best technology available, even when the costs were wholly disproportionate to the benefits. And in the 2006 case of Merrill Lynch v. Dabit, the Court ruled 8-0 to overturn her position that a state class-action lawsuit against Merrill Lynch was not pre-empted by federal law.

Even the best judges get overturned, of course, but the issue here is less the result than Judge Sotomayor's legal reasoning. As a lower court judge, she was restrained by a higher authority. On the Supreme Court, she is limited only by the other Justices she can win over to her arguments.

As the first nominee of a popular President and with 59 Democrats in the Senate, Judge Sotomayor is likely to be confirmed barring some major blunder. But Republicans can use the process as a teaching moment, not to tear down Ms. Sotomayor on personal issues the way the left tried with Justices Clarence Thomas and Sam Alito, but to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor's Constitutional principles are as free-form as they seem from her record.

from the Wall Street Journal, 2009-Jul-14, by Randy E. Barnett:

The Seinfeld Hearings
How Senators could, but probably won't, make the Sotomayor confirmation a show about something.

If you suspect this week's Senate confirmation hearings for Sonia Sotomayor will be, like "Seinfeld," a show about nothing, you are probably right. To understand why, we need to revisit an era that remade how lawyers and the public think about law, and especially the Constitution.

In the 1930s, academics developed a philosophy they called "legal realism" to undercut judicial resistance to "progressive" statutes such as laws restricting the hours a baker or a woman could work. Legal realism elevated just results over the rule of law. It saw analysis of "the law" as an after-the-fact rationalization that allowed reactionary judges to conceal their empathy for the oppressed. Because legal realists believed judges inevitably made law when they ruled, they thought judges should decide cases with progressive ends in mind.

At the same time, and somewhat inconsistently, realist progressives also condemned judges who declared progressive federal and state laws to be unconstitutional as judicial activists who were thwarting the will of the people. Never mind that the Supreme Court was only tepidly enforcing the original meaning of the Constitution and was upholding the vast majority of enlightened regulations. Any interference of the will of the people was deemed to be undemocratic.

Today we live in a legal world in which many progressives and conservatives share the legal realists' preoccupation with results. So justices must be chosen who will reach the politically correct results or opposed because they will reach the wrong results. Judicial confirmation hearings are thereby turned into a game of gotcha, with questioners trying to trip up the other side's nominees, and nominees quite properly refusing to reveal the only thing their inquisitors truly care about: how they would rule in particular cases that are likely to come before the Court.

But postures must be assumed and questions must be asked. So senators and nominees opine about two empty concepts. The first is "stare decisis" or precedent: Will the nominee follow the hallowed case of U.S. v. Whatchamacallit or not?

Of course, the legal realists detested precedent, which in their time stood in the way of their progressive agenda. Nothing has really changed. Both sides only want to respect the precedents that lead to the results they like. No one thinks justices should follow every precedent, so the crucial issue is picking and choosing which to follow and which to ignore. But how? Well, by the results, of course.

Now, when it comes to the meaning of the Constitution, I agree that precedent should not bind the Supreme Court. The written Constitution remains fixed, regardless of whether past decisions have gotten its meaning wrong. I am grateful that the Supreme Court reversed Plessy v. Ferguson -- the 1896 case that gave us "separate but equal" and an unconstitutional system of racial apartheid. Unfortunately, neither Democratic nor Republican senators will decry the post-New Deal rulings that transformed our constitutional order from what Princeton professor Stephen Macedo has called "islands of [government] powers in a sea of rights" to "islands of rights in a sea of [government] powers." Unless they can explain how we know which precedents to follow and which to reverse -- apart from liking the results -- all pontificating about "stare decisis" is really about nothing.

The second empty issue to be discussed is the bugaboo of "judicial activism" and its conjoined twin, "judicial restraint," which today's judicial conservatives have inherited from New Deal progressives. But what exactly is "activism"? Is it activism when any popularly enacted law is held unconstitutional? Neither Democrats or Republicans truly believe this, however, since they want judges to strike down laws as unconstitutional when doing so leads to the ["]right result["] (but not when it doesn't). So judicial activism means thwarting the "will of the people" when critics agree with the people, while they complain about the "tyranny of the majority" when they disagree.

We can do better.

Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

Don't ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained. Do nominees think they are bound by the original public meaning of the text? Even those who deny this still typically claim that original meaning is a "factor" or starting point. If so, what other factors do they think a justice should rely on to "interpret" the meaning of the text? Even asking whether "We the People" in the U.S. Constitution originally included blacks and slaves -- as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford -- will tell us much about a nominee's approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?

Of course, inquiring into clauses not cases would require senators to know something about the original meaning of the Constitution. Do they? It would be interesting to hear what Sen. Al Franken thinks about such matters, but no more so than any other member of the Judiciary Committee. Such a hearing would not only be entertaining, it would be informative and educational. After all, it would be about the meaning of the Constitution, which is to say it would be about something.

Mr. Barnett teaches at Georgetown Law and is the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).

from the New York Times, 2009-May-23, p.A1, web-posted 2009-May-22, by William Glaberson:

President's Detention Plan Tests American Legal Tradition

President Obama's proposal for a new legal system in which terrorism suspects could be held in “prolonged detention” inside the United States without trial would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.

There are, to be sure, already some legal tools that allow for the detention of those who pose danger: quarantine laws as well as court precedents permitting the confinement of sexual predators and the dangerous mentally ill. Every day in America, people are denied bail and locked up because they are found to be a hazard to their communities, though they have yet to be convicted of anything.

Still, the concept of preventive detention is at the very boundary of American law, and legal experts say any new plan for the imprisonment of terrorism suspects without trial would seem inevitably bound for the Supreme Court.

Mr. Obama has so far provided few details of his proposed system beyond saying it would be subject to oversight by Congress and the courts. Whether it would be constitutional, several of the legal experts said in interviews, would most likely depend on the fairness of any such review procedures.

Ultimately, they suggested, the question of constitutionality would involve a national look in the mirror: Is this what America does?

“We have these limited exceptions to the principle that we only hold people after conviction,” said Michael C. Dorf, a constitutional law professor at Cornell. “But they are narrow exceptions, and we don't want to expand them because they make us uncomfortable.”

In his speech on antiterrorism policy Thursday, Mr. Obama, emphasizing that he wanted fair procedures, sought to distance himself from what critics of the Bush administration saw as its system of arbitrary detention.

“In our constitutional system,” Mr. Obama said, “prolonged detention should not be the decision of any one man.”

But Mr. Obama's critics say his proposal is Bush redux. Closing the prison at Guantánamo Bay, Cuba, and holding detainees domestically under a new system of preventive detention would simply “move Guantánamo to a new location and give it a new name,” said Michael Ratner, president of the Center for Constitutional Rights. Defense Secretary Robert M. Gates suggested this month that as many as 100 detainees might be held in the United States under such a system.

Mr. Obama chose to call his proposal “prolonged detention,” which made it sound more reassuring than some of its more familiar names. In some countries, it is called “administrative detention,” a designation with a slightly totalitarian ring. Some of its proponents call it “indefinite detention,” which evokes the Bush administration's position that Guantánamo detainees could be held until the end of the war on terror — perhaps for the rest of their lives — even if acquitted in war crimes trials.

Mr. Obama's proposal was a sign of the sobering difficulties posed by the president's plan to close the Guantánamo prison by January. The prolonged detention option is necessary, he said, because there may be some detainees who cannot be tried but who pose a security threat.

These, he said, are prisoners who in effect remain at war with the United States, even after some seven years at Guantánamo. He listed as examples detainees who received extensive explosives training from Al Qaeda, have sworn allegiance to Osama bin Laden or have otherwise made it clear that they want to kill Americans.

Other countries, including Israel and India, have had laws allowing indefinite detention of terrorism suspects, said Monica Hakimi, an assistant professor of law at the University of Michigan who has written about the subject. But, she said, few provide for essentially unending detention, and several European countries have restricted preventive detention to days or weeks.

Mr. Obama's proposal, Professor Hakimi said, appears to be “an aggressive approach that is not commonly taken in other Western developed countries.”

In a letter to the president on Friday, Senator Russ Feingold, Democrat of Wisconsin, said he was not sure Mr. Obama's idea would prove constitutional, and added that “such detention is a hallmark of abusive systems that we have historically criticized around the world.”

Some critics of the Bush administration, who have become critics of Mr. Obama as well, have long said they are skeptical that there are detainees who are a demonstrable risk to the country but against whom the government can make no criminal case.

But some proponents of an indefinite detention system argue that Guantánamo's remaining 240 detainees include cold-blooded jihadists and perhaps some so warped by their experience in custody that no president would be willing to free them. And among them, the proponents say, are some who cannot be tried, in part for lack of evidence or because of tainted evidence.

Benjamin Wittes, a senior fellow at the Brookings Institution, said Mr. Obama's proposal was contrary to the path his administration apparently hoped to take when he took office. But that was before he and his advisers had access to detailed information on the detainees, said Mr. Wittes, who in a book last year argued for an indefinite detention system.

“This is the guy who has sworn an oath to protect the country,” he said, “and if you look at the question of how many people can you try and how many people are you terrified to release, you have to have some kind of detention authority.”

Civil liberties lawyers say American criminal laws are written broadly enough to make it relatively easy to convict terrorism suspects. They say Mr. Obama has not made the case persuasively that there is a worrisome category of detainees who are too dangerous to release but who cannot be convicted. The reason to have a criminal justice system at all, they say, is to trust it to decide who is guilty and who is not.

“If they cannot be convicted, then you release them,” said Jameel Jaffer, a lawyer at the American Civil Liberties Union. “That's what it means to have a justice system.”

[The standard of proof in the US criminal court system is “proof beyond a reasonable doubt” — in formal scientific terms, an impossible standard, and in practical terms, a standard designed to err on the side of acquittal. Acquitting and freeing manifest terrorists is an intolerable outcome, politically and morally. The prospective error and threat here is the intermixing of unlawful combatants captured in foreign theaters of war, with domestic law enforcement procedures and standards. This must in theory corrupt either judicial treatment of captured foreign unlawful combatants (making it unacceptably favor our mortal enemies), or judicial treatment of those detained domestically for alleged domestic conduct (making it treat some citizens, to some degree, as captured foreign unlawful combatants), and in practice must corrupt both. -AMPP Ed.]

from Investor's Business Daily, 2009-May-20:

Paper Tyrants

Congress: Of all the ways of killing liberty, from pistols to propaganda, the cleverest yet devised may be to smother the populace with endless words. Quick votes for colossal, unread legislation violate Congress' oath.

Henry Waxman, D-Calif., chairman of the House Energy and Commerce Committee, is planning to respond to Republican insistence that his entire 946-page cap-and-tax bill be read aloud by using a speed reader.

According to a Wall Street Journal story, the newly hired young staff aide claims he can read "a page about every 34 seconds," which would mean it would take only nine hours to recite all the gobbledygook in the monster climate legislation.

We have someone else in mind. Waxman should get the star of FedEx's commercials from the 1980s, John Moschitta Jr., to do the deed. At 586 words a minute, Moschitta made it into the Guinness Book. For portraying an executive who talks a mile a minute, he won the Clio Award with lines like, "Dave, it's a deal with Don, Dork and Dick. Dork, it's a deal with Don, Dave and Dick . . ."

Making Moschitta the public face of FedEx was one of the greatest advertising moves in corporate history, but a big part of Moschitta's charm was his sense of the absurd. That's exactly what must be brought home to the American people on Congress' outrageous practices.

If Waxman does send his speed-reading assistant up to the mike to do a Moschitta impersonation, the C-SPAN visual record will be YouTubed to millions. The masses will discover that all those unintelligible words whizzing into law at lightning speed, and without sufficient debate, will kill 850,000 jobs, according to the National Association of Manufacturers.

Indeed, the American Energy Alliance found that Waxman & Co. expect just that. Buried deep in the bill is what the group calls a "Response Guide for Mass Unemployment," giving three years of salary and health insurance, plus job training and relocation costs, to displaced workers.

According to the Massachusetts Institute of Technology, gasoline prices could rise by nearly 30% and electricity prices by 55% by 2015. Too much "emergency" legislation has been zoomed through Congress this year at the same warp-nine rate of speed.

Any time a bill is so long and convoluted that it takes someone who speaks 586 words a minute to read it into the record, it's a good indication that it shouldn't be passed into law at all.

from the Wall Street Journal, 2009-Apr-10:

Henry Waxman Has a Plan . . .
… for your living room, showerhead, jacuzzi…

Cap-and-trade theologians love to invoke markets: Merely put a price on carbon, they say, and the invisible hand will shoo us toward an eco-friendly future. Of course Congress has its own ideas.

Take the climate bill just offered by House powers Henry Waxman of California and Ed Markey of Massachusetts. The 648-page "discussion draft" ducks the most important policy questions about what Democrat Ben Cardin calls "the most significant revenue-generating proposal of our time" -- namely, how the tax will be levied and the proceeds spent. But it does find space to impose thousands of new environmental regulations on the entire economy, all separate from cap and trade.

Right off, the bill mandates that 25% of U.S. electricity come from wind, solar, geothermal or biomass by 2025. Sorry, nuclear doesn't count. This kind of renewable portfolio standard directly contradicts the putative flexibility of cap and trade, which is supposed to allow businesses to reduce CO2 how and where it is least expensive. But Democrats aren't about to let the details of their own policies stand in the way of magical thinking.

Despite political favoritism and billions in subsidies, wind still only accounts for about 1% of U.S. net electric generation, and solar all of one-hundredth of 1%. So now the liberal solution is simply to force people to buy them, a la the ethanol mandate. Yet it will be difficult for renewables to ever reach 25%, given their inherent limitations (intermittency) and, ironically, green opposition (no new power lines). That won't stop Congress from punishing utilities that fail to meet an impossible goal.

But Messrs. Waxman and Markey have more pressing matters. Such as building codes. New homes "with slanted roofs," for instance, will be required to meet a "solar reflectance" standard if they use "fiberglass asphalt-shingle roofing." We're not sure what that means either, but we do know that everything in homes will also face new efficiency regulations -- including furnaces, laundry machines, dishwashers, "showerheads, faucets, water closets, and urinals," even (or especially?) jacuzzis.

One of the more revealing sections focuses on products "intended for a general service or general illumination application" -- i.e., lights. This isn't surprising coming from the politicians who decided in 2007 that the public must be protected from the incandescent lightbulb, but it is excruciatingly detailed. By 2020, "the manufacture of any general service lamp that does not meet a minimum efficacy standard" will be prohibited. That includes fixtures "designed only to be mounted directly to an art work and for the purpose of illuminating that art work." But not "decorative lighting strings," so Christmas trees will escape the lamp police. For now.

Hording and black markets in old-fashioned lightbulbs are starting to crop up, and obviously Congress can't risk the same for lamps. So the bill says the feds can bring legal charges in U.S. district courts against "any person . . . distributing in commerce any covered product which does not comply." Environmental Protection Agency chief Lisa Jackson probably won't be conducting the raids personally, though we trust she'll enjoy hearing war stories about busting up the "high-intensity discharge lamp" ring back at HQ.

On that score, as early as next week the EPA will classify carbon as a dangerous pollutant under current clear-air laws, prompting a separate avalanche of new regulations. Mr. Waxman must be jealous, considering that the EPA staff wants to regulate -- among literally everything that produces CO2 -- "lawn and garden equipment" and "enteric fermentation" in livestock, otherwise known as flatulence.

The Obama Administration claims it is flirting with this "endangerment finding" and the economic havoc it would wreak only to force Congress into falling in line with its climate agenda. But if Democrats ever do get around to passing an anticarbon bill, Waxman-Markey is the going favorite, and so Americans should begin to understand the micromanagement over their daily lives that Congress has in store. All you have to do is read Mr. Waxman's plan.

from the Wall Street Journal, 2009-May-25, p.A13:

Memorial Day Makeover
Congress has an eye on your holiday menu.

Hot dogs, potato chips, soda and beer are staples of the traditional Memorial Day cookout, but Washington wants to redesign the menu. Just in time for your neighborhood block party, the Obama Administration and Senate Finance Committee are signalling a change in your diet.

President Obama has named Thomas Frieden, the New York City health commissioner who championed a ban on artificial trans fats, as the new director of the Centers for Disease Control and Prevention. Dr. Frieden's campaign forced McDonald's to change the way it cooks french fries -- you may have noticed the taste -- and he has lately called for all restaurants to use less salt. Let's hope he spends at least some of his time considering flu pandemics and bioterrorism.

In any case, when Dr. Frieden arrives in Washington, he'll find an ally in Michael Jacobson, head of the Naderite Center for Science in the Public Interest. Mr. Jacobson has made a career attacking ethnic restaurants, fast-food chains and grocery manufacturers for allegedly unhealthy fare. While he may be the last guy you'd want at your barbecue, Mr. Jacobson was recently an honored guest at Senate Finance. At a hearing to brainstorm on ways to pay for Mr. Obama's new health-care entitlement, Mr. Jacobson recommended that Congress enact a 50% reduction in the salt content of America's food supply, a tax of up to one cent per ounce on soft drinks, and a tripling of the federal excise tax on beer, to roughly 16 cents a can.

Is government to be the servant of the people, or their (thigh)master? Mr. Jacobson's view of the role of government was illuminated by his gripe that since 1991 beer has been taxed at a flat $18 per barrel. "Since then, inflation has robbed the Treasury of more than one-third the value of the taxes," he said.

The committee staff was apparently listening, because a Senate Finance report released this week listed a federal beer tax increase and a new levy on soft drinks among the options for financing new health-care spending. In sum, Washington looks set to provide you with a host of new incentives to enjoy grilled veggies and a refreshing glass of water at your next cookout.

This doesn't mean that the feds are taking all the fun out of the weekend when we rightly honor Americans who have sacrificed their lives in war. After all, many Americans tune in each year to watch the Indianapolis 500 auto race, and the sport is sure to win new suburban fans now that Detroit has been ordered to make more fuel-efficient cars. We can only imagine the thrill of hearing the high-pitched whine of hybrid engines as low-emission vehicles achieve speeds exceeding 80 miles per hour. Though perhaps "the greatest spectacle in racing" will soon be presenting itself as "a sustainable activity, when appropriately balanced with carbon offsets."

from the Wall Street Journal, 2009-Apr-24:

Reckless 'Endangerment'
The Obama EPA plays 'Dirty Harry' on cap and trade.

President Obama's global warming agenda has been losing support in Congress, but why let an irritant like democratic consent interfere with saving the world? So last Friday the Environmental Protection Agency decided to put a gun to the head of Congress and play cap-and-trade roulette with the U.S. economy.

The pistol comes in the form of a ruling that carbon dioxide is a dangerous pollutant that threatens the public and therefore must be regulated under the 1970 Clean Air Act. This so-called "endangerment finding" sets the clock ticking on a vast array of taxes and regulation that EPA will have the power to impose across the economy, and all with little or no political debate.

This is a momentous decision that has the potential to affect the daily life of every American, yet most of the media barely noticed, and those that did largely applauded. When America's Founders revolted against "taxation without representation," this is precisely the kind of kingly diktat they had in mind.

Michigan Democrat John Dingell helped to write the Clean Air Act, as well as its 1990 revision, and he says neither was meant to apply to carbon. But in 2007 five members of the Supreme Court followed the environmental polls and ordered the EPA to determine if CO2 qualified as a "pollutant." The Bush Administration prudently slow-walked the decision. As Peter Glaser, an environmental lawyer at Troutman Sanders, told Congress in 2008, "The country will experience years, if not decades, of regulatory agony, as EPA will be required to undertake numerous, controversial, time-consuming, expensive and difficult regulatory proceedings, all of which ultimately will be litigated."

The Obama EPA has now opened this Pandora's box. The centerpiece of the Clean Air Act is something called the National Ambient Air Quality Standards, or NAAQS, under which the EPA decides the appropriate atmospheric concentration of a given air pollutant. Under this law the states must adopt measures to meet a NAAQS goal, and the costs cannot be considered. For global warming, this is going to be a hugely expensive futility parade.

Greenhouse gases mix in the atmosphere, and it doesn't matter where they come from. A ton of emissions from Ohio has the same effect on global CO2 as a ton emitted in China; and even if Ohio figured out a way to reduce its emissions to zero, it would still have no control over the carbon content in its ambient air. But under the law, EPA would be required to severely punish Ohio -- and every state -- for not complying with NAAQS.

Under the Clean Air Act, the EPA also must regulate all "major" sources of emissions that emit more than 250 tons of an air pollutant in a year. That includes "any building, structure, facility or installation." This might be a reasonable threshold for conventional pollutants such as SOX or NOX, but it's extremely low for carbon. Hundreds of thousands of currently unregulated sources will suddenly be subject to the EPA's preconstruction permitting and review, including schools, hospitals, malls, restaurants, farms and colleges. According to EPA, the average permit today takes 866 hours for a source to prepare, and 301 hours for EPA to process. So this regulatory burden will increase by several orders of magnitude.

The EPA took the highly unusual step of not accompanying its endangerment finding with actual proposed regulations. For now, EPA Administrator Lisa Jackson claims her agency will only target cars and trucks. That is bad enough. It probably means, for example, that California's mileage fleet burdens will seep out to every other state. So even as taxpayers are now paying tens of billions of dollars to prop up GM and Chrysler, Ms. Jackson will be able to tell the entire auto industry it must make even more small cars that consumers don't want to buy.

Still, why confine the rule only to cars and trucks? By the EPA's own logic, it shouldn't matter where carbon emissions come from. Carbon from a car's tailpipe is the same as carbon from a coal-fired power plant. And transportation is responsible for only 28% of U.S. emissions, versus 34% for electricity generation. Ms. Jackson is clearly trying to limit the immediate economic impact of her ruling, so as not to ignite too great a business or consumer backlash.

But her half-measure is also too clever by half. By finding carbon a public danger, she is inviting lawsuits from environmental lobbies demanding that EPA regulate all carbon sources. Massachusetts and two other states have already sued in federal court to force the EPA to create a NAAQS for CO2.

Which brings us back to the Obama Administration's political roulette. Democrats know that their cap-and-tax agenda is losing ground, notably among Midwestern Senators. The EPA "endangerment" is intended to threaten businesses and state and local governments until they surrender and support the Obama agenda. The car industry is merely the first target, meant to be the object lesson.

Massachusetts Democrat Ed Markey put it this way at MIT recently: "Do you want the EPA to make the decision or would you like your Congressman or Senator to be in the room and drafting legislation? . . . Industries across the country will just have to gauge for themselves how lucky they feel if they kill legislation in terms of how the EPA process will include them."

This "Dirty Harry" theory of governance -- Do you feel lucky? -- is as cynical as it is destructive. And contra Mr. Markey, if cap and tax is killed this year, it will be done in by Democrats, many of whom are starting to realize the economic harm it would inflict. In March, the Senate voted 89 to 8 on a resolution vowing to pass a climate bill only if "such legislation does not increase electricity or gasoline prices."

That's called democracy, but for the Obama Administration such debate is an inconvenient truth. If they can't get Congress to pass their agenda, they'll use EPA and the courts to impose it. How lucky do you feel?

from the Wall Street Journal, 2009-Apr-17, by Sam Kazman:

Small Cars Are Dangerous Cars
Fuel economy zealots can kill you.

The super-high efficiency minicar has become the Holy Grail for many environmentalists. But on Tuesday, a new study on minicar safety tossed some cold water on the dream. The Insurance Institute for Highway Safety (IIHS) reported that in a series of test crashes between minicars and midsize models, minis such as the Smart car provided significantly less protection for their passengers.

The tests did not involve the much ballyhooed mismatches between subcompacts and Hummers, but measured the effect of relatively modest differences in size and weight. Even though the Smart car and other minis such as the Honda Fit and the Toyota Yaris have fared relatively well in single-car crash tests, they performed poorly in these two-car frontal offset collisions. In the words of IIHS president Adrian Lund, "though much safer than they were a few years ago, minicars as a group do a comparatively poor job of protecting people in crashes, simply because they're smaller and lighter."

That difference is reflected in the real world. The death rate in minis in multi-vehicle crashes is almost twice as high as that of large cars. And in single-vehicle crashes, where there's no oversized second vehicle to blame, the difference is even greater: Passengers in minis suffered three times as many deaths as in large cars.

Given the nonstop pronouncements we've been hearing about the green promise of high-efficiency cars, these results were shocking to some. But not to IIHS. The Institute has long been reporting similar results from other tests, and its publications candidly advise that, when it comes to safety, larger and heavier cars are generally better.

That's not what advocates of higher fuel-economy standards want to hear. Greater weight may increase crashworthiness, but it also decreases miles per gallon, so there's an inevitable trade-off between safety and efficiency. A 2002 National Research Council study found that the federal Corporate Average Fuel Economy (CAFE) standards contributed to about 2,000 deaths per year through their restrictions on car size and weight. But amazingly, with the exception of IIHS, there's practically no one else providing information on the size-safety issue:

- Not the National Highway Traffic Safety Administration, which has a highly dubious track record on CAFE. In a 1992 lawsuit filed by the Competitive Enterprise Institute, and Consumer Alert, a federal appeals court found the agency guilty of using "mumbo jumbo" and "legerdemain" to conceal CAFE's lethal effects.

- Not the Environmental Protection Agency, which is about to become a major partner in setting CAFE standards. EPA is often fixated on minute risks, such as radon in drinking water, but don't expect it to admit to CAFE's dangers. Its official mission may be "to protect human health and the environment," but its operating philosophy seems to be "not necessarily in that order."

- Not Ralph Nader and his allied traffic safety groups, which are often CAFE's most energetic cheerleaders. Decades ago, Mr. Nader and his colleagues repeatedly warned of the hazards of small cars. The Center for Auto Safety's 1972 book "Small -- On Safety," noted "the inherent limitations" that "small size and light weight" impose on crashworthiness. But in the 1990s both Mr. Nader and the Center reversed their position. Why? Because CAFE presented them with a stark choice between more government power and more safety. They went for more power.

- Not Consumer Reports, which has consistently failed to mention the importance of size and weight in discussing how to choose a safer car. Though it is regarded as the information bible by many car buyers, not a single one of its annual auto issues in the last five years has touched on this topic.

As the National Research Council reported, the current CAFE program -- 27.5 mpg for passenger cars -- contributed to about 2,000 deaths. But driving is going to get even more lethal over the next decade: CAFE standards will be raised to a 35 mpg combined average for cars and light trucks. And with the notable exception of IIHS, information about those risks may be hard to come by.

Mr. Kazman is general counsel of the Competitive Enterprise Institute.

from the Wall Street Journal, 2009-May-22, by Robert E. Grady:

Light Cars Are Dangerous Cars
And other unintended consequences of strict fuel-economy standards.

If something seems too good to be true, it usually is. Such is the case with President Barack Obama's proposed national fuel efficiency standards for cars and trucks and a new tailpipe standard for C02 emissions. The national press has uncritically reported that the new standards will make cars "cleaner." In fact, the rules could impose substantial costs in terms of urban air pollution and human life.

The standards are designed to reduce C02 emissions from cars, with the twin goals of addressing climate change and reducing dependence on imported energy. Carbon dioxide is, of course, ubiquitous and relatively harmless on an everyday basis. It is only its long-term buildup that scientists posit will cause temperature warming. What are not so harmless in the near term are the "criteria air pollutants" currently regulated under the Clean Air Act -- ground-level ozone (or smog), particulate matter, carbon monoxide, sulfur dioxide, nitrogen oxides and lead -- all of which have been shown by the Environmental Protection Agency's (EPA) own scientists to have an adverse effect on human health.

The great irony of Mr. Obama's fuel efficiency proposals is that they may worsen emissions of these harmful gases. By the White House's own calculation (which many observers believe to be quite conservative), the new rules, when combined with earlier proposed increases in Corporate Average Fuel Economy (CAFE) standards, will increase the average price of a new car by $1,300. Herein lies the problem.

In today's automobile fleet, the majority of the pollution comes from the oldest, dirtiest cars. In fact, the dirtiest 10% of the cars account for more than 50% of smog and carbon monoxide. The dirtiest one-third of the fleet accounts for more than 80% of the pollution. That is because the U.S. government has, for 39 years now under successive versions of the Clean Air Act, required automakers to meet ever-tightening standards for tailpipe emissions from new cars. When it comes to smog, carbon monoxide, nitrogen oxides and particulates that new SUV is a lot cleaner than an old, poorly-tuned compact.

The Clean Air Act's requirements have sent emissions in the right direction. According to the EPA, since 1980 annual emissions of carbon monoxide are down 52%, emissions of ozone are down 41%, and emissions of nitrogen dioxide are down 37%. (Emissions of lead are down 97% thanks to taking the lead out of gasoline in the early 1980s).

The Obama plan could slow this progress. An economic phenomenon called "price elasticity of demand" is well established when it comes to automobile purchases. In other words, if you raise the price of new cars, people will buy fewer of them or, at a minimum, put off the purchase for a year or so while they drive the old clunker for a few thousand more miles. And fewer new cars means more pollution, which can cause significant health problems. Yet environmentalists and the press have ignored this issue, so as not to inject a note of complexity or doubt into the chorus of glee that greeted the president's attack on greenhouse-gas emissions.

Last fall, however, both the press and the green community paid significant attention to a study conducted by researchers from California State University at Fullerton and Sonoma Technology Inc. The study showed that, from 2005-07, California's South Coast and San Joaquin Valley air basins experienced more than 100 days in which ozone levels exceeded the National Ambient Quality Standard. In each of those areas, more than 60% of the population was exposed to unhealthy levels of fine particulate matter.

The study concluded that if these areas had simply met the federal standard, these regions could have experienced 1,950 fewer new cases of adult-onset chronic bronchitis; 3,680 fewer premature deaths among those 30 and older; 141,370 fewer asthma attacks; almost 500,000 fewer lost days of work; and, importantly, avoided approximately $28 billion in total costs to the Southern California economy.

Clearly the health risks from fine particulates especially and also from smog are substantial. It is also true that many scientists and economists predict significant long-term costs associated with climate change. But the costs associated with excessive emissions of criteria air pollutants are immediate and observable.

The Obama fuel efficiency plan may also contribute to a significant increase in highway deaths as vehicles are required to quickly meet the new CAFE standard and will likely become lighter in weight as a result. According to a study completed in 2001 by the National Research Council (NRC), the last major increase in CAFE standards, mandated by the Energy Policy and Conservation Act of 1975, required about a 50% increase in fuel economy (to 27.5 mpg by model year 1985 from an average of 18 mpg in 1978). The NRC study concluded that the subsequent downsizing and down-weighting of vehicles, "while resulting in significant fuel savings, also resulted in a safety penalty." Specifically, the NRC estimated that in 1993 there were between 1,300 and 2,600 motor vehicle crash deaths that would not have occurred if cars were as heavy as they were in 1976.

The president now proposes a fuel economy increase of similar magnitude in an even quicker time frame -- to 39 mpg by model year 2016 from 27.5 mpg now. Given the time it takes for new technologies to be developed, tested and incorporated into new car models, it is likely that down-weighting of cars will be an important means of meeting the new standard. And one result again could be highway deaths that might otherwise not have occurred.

Well, one might argue, this would not be the case if everyone drove smaller cars. The NRC study considered this countervailing fact and included it in its estimates. But nearly half of all car crashes (more than 48% in the years studied) are one-vehicle crashes. Put another way: If your car hits a tree or a post or a bridge abutment, you are most certainly better off in a larger car.

None of this is intended to argue that Mr. Obama should not be attacking the problem of climate change. Indeed, some in Congress are proposing to cap carbon emissions and allow tons of carbon credits to be traded, which at least provides the flexibility for those who must comply to reduce emissions in whatever way they choose. Others are proposing an increase in gasoline or carbon taxes. Both of these approaches have their merits, although economic conservatives like me would point out that, in order not to damage the ailing economy, any increases in gasoline or carbon taxes should be matched by a cut of at least equal size in payroll taxes.

My point is simply this: Mr. Obama's proposed fuel efficiency and CO2 tailpipe regulations should be subjected to rigorous cost-benefit analysis, as all federal regulations should be. Those at EPA charged by statute with regulating air emissions, and those at the Office of Management and Budget charged with reviewing the implementing regulations, should carefully assess whether the benefits of the president's fuel efficiency and carbon proposals outweigh their very real costs.

Mr. Grady is managing director of the Carlyle Group in San Francisco and a former trustee of the Environmental Defense Fund. He was involved as a senior White House aide in drafting the Clean Air Act Amendments of 1990, and helped craft Gov. Arnold Schwarzenegger's Environmental Action Plan during his 2003 campaign.

from the Wall Street Journal, 2009-May-22, p.A13, by Collin Levy:

How Joe Biden Wrecked the Judicial Confirmation Process
The vice president can't complain if Republicans object to Obama's Supreme Court nominee.

Vice President Joe Biden is widely praised for the expertise he brings in helping Barack Obama choose a replacement for retiring Supreme Court Justice David Souter. Having served for three decades on the Senate Judiciary Committee, he is considered an asset both for his relationships with committee members and his familiarity with the nuts and bolts of judicial nominations. So let's have a look at how the confirmation process actually fared under Mr. Biden's leadership.

As a member of the Senate Judiciary Committee, Mr. Biden was present for the nomination and confirmation of every currently sitting Supreme Court justice except for John Paul Stevens. In 1986, the year before Mr. Biden took over as committee chairman, Antonin Scalia was approved by the Senate in a vote of 98-0. Then came Robert Bork and a presidential election.

Before Judge Bork's nomination, Mr. Biden had said he would support him. And why not? He was widely considered a dazzling legal mind and had even received (during his confirmation to the D.C. Circuit Court of Appeals) a rating of "exceptionally well-qualified" from the liberal-leaning American Bar Association. "Say the administration sends up Bork," Mr. Biden told the Philadelphia Inquirer in November 1986, "and, after our investigations, he looks a lot like Scalia. I'd have to vote for him, and if the [special-interest] groups tear me apart, that's the medicine I'll have to take."

But by the time of the actual nomination, Democrats were promising to play "hardball" with President Ronald Reagan's nominees and Mr. Biden was running for president. Mr. Biden's Democratic colleagues lined up against the nominee. They were led by Sen. Edward Kennedy, who demonized him with a monologue on "Robert Bork's America," which he promised would be "a land in which women would be forced into back alley abortions." Liberal groups joined the chorus for Mr. Biden to recant his earlier support, which he did, helping to defeat Mr. Bork's nomination.

Back then the tactics were considered shocking. Warren Burger, the former chief justice, said he was "astonished" by the comments he'd read about a nominee he thought was one of the most qualified he'd seen in 50 years. If the Senate rejected Mr. Bork, he said, "then they shouldn't have confirmed me."

Just one year after the conservative Mr. Scalia's unanimous confirmation the winds had changed dramatically. The Senate had hitherto proceeded on the principle that it owed the president deference on his judicial selections. No longer.

"The framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary," Mr. Biden said in August 1987 in defense of his newfound opposition to Judge Bork. "The Senate has an undisputed right to consider judicial philosophy." With that marker placed, the ultimate winner of the seat vacated by Justice Lewis Franklin Powell Jr. was a nominee nearly devoid of political philosophy -- Anthony Kennedy.

Mr. Biden's obstruction was further rewarded by the first President Bush. In attempting to dodge controversy, he gave liberals David Souter, whose appeal was enhanced by the fact that he had been a federal judge for less than a year and had almost no paper trail.

By the time Clarence Thomas's confirmation hearings came around, Mr. Biden's modus operandi was well known. In his book, "My Grandfather's Son," Justice Thomas recalls that before the Anita Hill inquisition began, Mr. Biden called him and said "Judge, I know you don't believe me but if the allegations come up I will be your biggest defender." "He was right about one thing," Justice Thomas wrote, "I didn't believe him."

Under Mr. Biden's leadership, holding up nominations to the nation's appeals courts also became a routine exercise. In 1988, the Senate Judiciary Committee delayed 17 months before refusing to confirm law professor and scholar Bernard Siegan to the Ninth Circuit Court of Appeals because of his libertarian positions on economic issues. In 1992, Mr. Bush's nominee to the 11th Circuit, Edward Carnes, endured an eight-month delay and an attempted filibuster before finally being confirmed. By 1992, 64 judicial nominees were stuck in the senatorial muck waiting for the Judiciary Committee to give them a yea or nay.

The Senate obstructionism that began with Reagan's nominees thus became a game of political revenge as each new batch of nominees was made to suffer at the hands of one party for the treatment its nominees had received in the last round. Republicans blocked some of President Bill Clinton's nominees, including briefly, Sonia Sotomayor, the Second Circuit judge said to be on Mr. Obama's short list to replace Mr. Souter. Unable to bottle up Miguel Estrada in committee in 2003, Democrats filibustered him on the floor of the Senate. Sen. Carl Levin (D., Mich.) held up as many as four judicial nominations for years in retribution for Republicans blocking Mr. Clinton's nomination of Helene White (she was confirmed for the Sixth Circuit last year). And so on.

The effect of this game has been toxic not only for the nominees but for the courts. Many circuits have suffered judicial emergencies, defined as vacancies on courts overwhelmed by their caseloads, or vacancies languishing more than 18 months on busy circuits. Some stood open longer. The Bush administration's 2006 appointment of Peter Keisler to fill the D.C. Circuit seat vacated by John Roberts was left to expire, unfilled, at the end of the administration.

True, Supreme Court nominees John Roberts and Samuel Alito were confirmed -- but without the support of then Sens. Joe Biden or Barack Obama. Mr. Alito was confirmed by a vote of 58-42, the second narrowest margin in Senate history (after Clarence Thomas). Even Chief Justice Roberts's margin of 78-22 was contentious in historical terms. Ruth Bader Ginsburg was confirmed 93-3, Sandra Day O'Connor 99-0, John Paul Stevens 98-0, and David Souter 90-9.

What is in store for Mr. Obama's nominees remains to be seen. Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, has said he isn't inclined to the filibuster even if it is an option and most expect the president's Supreme Court choice will be confirmed.

As a matter of judicial philosophy, however, Mr. Obama has said he wants a nominee who "understands that justice isn't about some abstract legal theory or footnote in a case book." If that is considered by opponents as grounds for rejection Joe Biden will know where they're coming from.

Ms. Levy is a senior editorial writer at the Journal, based in Washington.

from the Wall Street Journal, 2009-Apr-23:

Presidential Poison
His invitation to indict Bush officials will haunt Obama's Presidency.

Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret.

Policy disputes, often bitter, are the stuff of democratic politics. Elections settle those battles, at least for a time, and Mr. Obama's victory in November has given him the right to change policies on interrogations, Guantanamo, or anything on which he can muster enough support. But at least until now, the U.S. political system has avoided the spectacle of a new Administration prosecuting its predecessor for policy disagreements. This is what happens in Argentina, Malaysia or Peru, countries where the law is treated merely as an extension of political power.

If this analogy seems excessive, consider how Mr. Obama has framed the issue. He has absolved CIA operatives of any legal jeopardy, no doubt because his intelligence advisers told him how damaging that would be to CIA morale when Mr. Obama needs the agency to protect the country. But he has pointedly invited investigations against Republican legal advisers who offered their best advice at the request of CIA officials.

"Your intelligence indicates that there is currently a level of 'chatter' equal to that which preceded the September 11 attacks," wrote Assistant Attorney General Jay Bybee, in his August 1, 2002 memo. "In light of the information you believe [detainee Abu] Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an 'increased pressure phase.'"

So the CIA requests a legal review at a moment of heightened danger, the Justice Department obliges with an exceedingly detailed analysis of the law and interrogation practices -- and, seven years later, Mr. Obama says only the legal advisers who are no longer in government should be investigated. The political convenience of this distinction for Mr. Obama betrays its basic injustice. And by the way, everyone agrees that senior officials, including President Bush, approved these interrogations. Is this President going to put his predecessor in the dock too?

Mr. Obama seemed to understand the peril of such an exercise when he said, before his inauguration, that he wanted to "look forward" and beyond the antiterror debates of the Bush years. As recently as Sunday, Rahm Emanuel said no prosecutions were contemplated and now is not a time for "anger and retribution." Two days later the President disavowed his own chief of staff. Yet nothing had changed except that Mr. Obama's decision last week to release the interrogation memos unleashed a revenge lust on the political left that he refuses to resist.

Just as with the AIG bonuses, he is trying to co-opt his left-wing base by playing to it -- only to encourage it more. Within hours of Mr. Obama's Tuesday comments, Senator Carl Levin piled on with his own accusatory Intelligence Committee report. The demands for a "special counsel" at Justice and a Congressional show trial are louder than ever, and both Europe's left and the U.N. are signaling their desire to file their own charges against former U.S. officials.

Those officials won't be the only ones who suffer if all of this goes forward. Congress will face questions about what the Members knew and when, especially Nancy Pelosi when she was on the House Intelligence Committee in 2002. The Speaker now says she remembers hearing about waterboarding, though not that it would actually be used. Does anyone believe that? Porter Goss, her GOP counterpart at the time, says he knew exactly what he was hearing and that, if anything, Ms. Pelosi worried the CIA wasn't doing enough to stop another attack. By all means, put her under oath.

Mr. Obama may think he can soar above all of this, but he'll soon learn otherwise. The Beltway's political energy will focus more on the spectacle of revenge, and less on his agenda. The CIA will have its reputation smeared, and its agents second-guessing themselves. And if there is another terror attack against Americans, Mr. Obama will have set himself up for the argument that his campaign against the Bush policies is partly to blame.

Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow. And speaking of which, when will the GOP Members of Congress begin to denounce this partisan scapegoating? Senior Republicans like Mitch McConnell, Richard Lugar, John McCain, Orrin Hatch, Pat Roberts and Arlen Specter have hardly been profiles in courage.

Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.

from the Wall Street Journal, 2009-May-19, p.A16:

Sarbox and the Constitution
Supreme Court scrutiny for a harmful law.

Here's a pleasant surprise: The Supreme Court agreed yesterday to hear arguments in a case challenging the constitutionality of the Sarbanes-Oxley Act of 2002. This could get interesting.

Specifically, the lawsuit brought by free-market think tanks challenges the Public Company Accounting Oversight Board (PCAOB), which was created by Sarbox to police the auditing of public companies. The Appointments Clause of the U.S. Constitution requires that "officers of the United States" be appointed by the President or by the head of a department. Yet under Sarbox, the SEC Commissioners as a group pick PCAOB members. The President can neither appoint nor remove the officials, an arrangement that may violate the separation of powers.

The D.C. Circuit Court of Appeals voted to uphold the PCAOB provision last year in a 2-to-1 ruling at odds with itself. To reject the Appointments Clause challenge, the court held that the SEC Commissioners, rather than the Chairman alone, serve as the collective "head" of the agency and can therefore pick PCAOB members without violating the Constitution. But to reject the separation of powers challenge, the same ruling suggests that the SEC Chairman is in fact the head of the agency. The court reasoned that since the SEC Chairman, unlike the Commissioners, serves at the pleasure of the President, the PCAOB is indirectly accountable to the White House and thus is constitutional. Got that? Some Supreme Court clarity would be welcome.

Sarbanes-Oxley is one of those Congressional classics, passed amid the post-Enron panic, that has done much harm at great cost. Its biggest beneficiaries have been the same accounting firms the law sought to punish and which have nonetheless been able to charge far more money for their services. The law also did nothing to detect problems with the ratings and valuation of subprime mortgaged-back securities. We can only hope the High Court sends Congress back to the drawing board.

from the Wall Street Journal, 2009-May-18, by Glenn Harlan Reynolds:

Tax Audits Are No Laughing Matter
A president shouldn't even joke about abusing IRS power.

Barack Obama owes his presidency in no small part to the power of rhetoric. It's too bad he doesn't appreciate the damage that loose talk can do to America's tax system, even as exploding federal deficits make revenues more important than ever.

At his Arizona State University commencement speech last Wednesday, Mr. Obama noted that ASU had refused to grant him an honorary degree, citing his lack of experience, and the controversy this had caused. He then demonstrated ASU's point by remarking, "I really thought this was much ado about nothing, but I do think we all learned an important lesson. I learned never again to pick another team over the Sun Devils in my NCAA brackets. . . . President [Michael] Crowe and the Board of Regents will soon learn all about being audited by the IRS."

Just a joke about the power of the presidency. Made by Jay Leno it might have been funny. But as told by Mr. Obama, the actual president of the United States, it's hard to see the humor. Surely he's aware that other presidents, most notably Richard Nixon, have abused the power of the Internal Revenue Service to harass their political opponents. But that abuse generated a powerful backlash and with good reason. Should the IRS come to be seen as just a bunch of enforcers for whoever is in political power, the result would be an enormous loss of legitimacy for the tax system.

Our income-tax system is based on voluntary compliance and honest reporting by citizens. It couldn't possibly function if most people decided to cheat. Sure, the system is backed up by the dreaded IRS audit. But the threat is, while not exactly hollow, limited: The IRS can't audit more than a tiny fraction of taxpayers. If Americans started acting like Italians, who famously see tax evasion as a national pastime, the system would collapse.

One reason why Americans don't act like Italians is that they see the income-tax system as basically fair in execution. A tax audit or a tax-fraud prosecution is still seen, usually, as evidence that someone has done something wrong. If it comes instead to be seen as "just politics" then the moral component of the system will be gone. For the system to work, people have to believe that it is fundamentally fair.

This is why the IRS is so strict with its own employees. Paul Caron, a professor at the University of Cincinnati who writes the TaxProf blog, noted in response to Mr. Obama's remarks that the law calls for the termination of IRS employees who make audit threats for illegitimate reasons. He suggested that Mr. Obama's "joke" might be grounds for firing if he were an IRS employee.

He's not, of course, but as the president his words carry much more weight and he should be much more careful. That's particularly true given that people still haven't forgotten about the Obama administration's other tax issues -- the appointment of Tim Geithner as Treasury secretary despite an inexcusable failure to pay $34,000 in Social Security and Medicare taxes while working for the International Monetary Fund, and the scandals involving Tom Daschle and others whose appointments failed. (When the Geithner issue came up, news reports indicated that IRS employees were very upset. They can be fired over a simple late filing or a failure to report a mere $500 in income, making Mr. Geithner's "pass" on much more serious questions quite demoralizing.)

The notion that people who are audited are probably just "enemies of the regime," coupled with the idea that big shots get a pass -- that, as Leona Helmsley is reputed to have said, "taxes are for the little people" -- is a recipe for widespread tax evasion. That's how things work in Italy, and in many other countries around the world. But do we want things to work that way here?

Mr. Obama has been accused of not appreciating the importance of financial capital to the proper functioning of the economy. But ill-chosen remarks like his ASU audit threat suggest that he also doesn't appreciate the role of moral capital. That, too, is essential to the proper functioning of a modern economy. As he looks for ways to pay for the spending campaign he's already embarked upon, he'd be well-advised to avoid comments that undercut the very tax system he'll be depending on.

Mr. Reynolds, professor of law at the University of Tennessee, covers politics for PJTV.com.

from the Wall Street Journal, 2009-Apr-21:

The ABA's BFF
Why Obama wants lawyers to rate judges.

President Obama announced recently that he will restore the American Bar Association to pre-eminence in federal judicial vetting -- a privilege it lost under President Bush. And no wonder. A study out of three universities in Georgia says the ABA's vetting is predisposed toward more generous ratings of liberal nominees than of conservatives.

According to the study by Richard Vining of the University of Georgia, Amy Steigerwalt of Georgia State University and Susan Smelcer at Emory University, the more conservative a nominee, the less likely he or she will receive a high ABA rating. The study also found that nominees chosen by Democratic Presidents fared better in the ratings than did their counterparts under Republican Administrations. And that's even before the Senate got involved.

Looking at federal appellate nominees between 1985 and 2008 across the ideological spectrum, the study found that the most liberal nominees had a 62.3% chance of receiving a "well-qualified" rating from the ABA, as opposed to only a 35.5% likelihood for the most conservative nominees. A liberal judge, in other words, would be some 27% more likely than a comparably qualified conservative judge to receive a well-qualified rating. Nominees in the Clinton Administration were 14% more likely to get the ABA's highest rating than the nominees of Presidents Reagan, George H.W. Bush and George W. Bush.

The ABA long ago became ideologically partisan, though it likes to hold on to the pretense of fairness and "merit." The group routinely criticized the Bush Administration -- in 2006 even claiming that Mr. Bush was guilty of abuse of power because of his signing statements. Last summer, the ABA voted to endorse a version of so-called "merit selection" for federal judges -- a method that has shifted state courts to the left and is supported by groups like the left-leaning and George Soros-funded Justice at Stake.

Mr. Obama's decision is a major victory for the lawyers guild, which draws prestige as the arbiter of qualifications for the career capstone of a judgeship. It's also hard to imagine the group doesn't feel a debt of gratitude to the President whose nominations it will now review.

from the Wall Street Journal, 2009-May-13:

'A Blatant Extortion'
A judge slams plaintiffs lawyers' torts-for-import game.

Court cases get dismissed all the time, but rarely are dismissals as significant as the two lawsuits against Dole Food and other companies that were tossed recently by a California judge. Among other good things, the ruling is a setback for tort lawyers who troll abroad seeking dubious claims to bring in U.S. courts.

The allegations against Dole, the world's largest fruit and vegetable producer, involved banana plantation workers in Nicaragua who alleged that exposure to the pesticide DBPC in the 1970s left them sterile. The only problem is that most of the plaintiffs had not worked at plantations and weren't sterile. In fact, there's no evidence that farm workers at Dole facilities were exposed to harmful levels of the chemical -- which was legal and widely used at the time -- or that the level of exposure they did experience even causes sterility.

"What has occurred here is not just a fraud on the court, but it is a blatant extortion of the defendants," said Los Angeles Superior Court Judge Victoria Chaney in her oral ruling. More than 40 related cases involving thousands of plaintiffs from Honduras, Costa Rica, Guatemala, Panama and the Ivory Coast are pending in her court. And the ruling puts in doubt some $2 billion in judgments that plaintiffs lawyers have already obtained in Nicaragua.

Judge Chaney dismissed the cases "with prejudice" to prevent the plaintiffs from filing again on the same claims, and she denounced the lawyers who hatched the scheme. "This is a very sad day for me to be presiding over such a horrific situation," said the judge, who described a "pervasive conspiracy" involving U.S. plaintiffs lawyers and corrupt Nicaraguan judges.

Judge Chaney said she heard evidence of U.S. attorneys colluding with judges, lab technicians and local officials in Nicaragua to suborn perjury and doctor medical reports. Ten thousand men were rounded up and coached to make false claims of sterility in hope of reaping billions of dollars from companies like Dole, Dow Chemical and Amvac. Anyone who revealed the ruse was threatened with violence, as were the U.S. investigators hired by the defendants.

"There have been groups of medical personnel providing sham laboratory reports indicating sterility where none really exists; groups of fathers denying paternity of their own children, posing as lonely men coming into the court, saying that they had no solace in their old age because they have no children," said the judge.

Plaintiffs attorney Juan Dominguez of Los Angeles was singled out for alleged behavior that Judge Chaney said has "criminal overtones." At a hearing last week, she announced that she was referring Mr. Dominguez to federal prosecutors for investigation of perjury, obstruction of justice, defrauding the court and conspiring to defraud a U.S. company. Mr. Dominguez didn't show at Judge Chaney's hearing and is thought to be somewhere in Nicaragua.

The plaintiffs were also represented by the Sacramento firm of Miller, Axline & Sawyer. The judge said she didn't believe the Miller Axline lawyers were in on the conspiracy but added that they should have been suspicious. "I would have thought that a bit of vigilance would have suggested to plaintiff's counsel that something was awry," she said.

The ruling is especially useful as a rebuke to the torts-for-import business, whereby U.S. tort lawyers travel abroad, join with local lawyers to manufacture claims, and then engage in client recruitment practices that are blatantly illegal in the U.S. In essence, the tort bar's goal is to import lawsuits from foreign countries where it's nearly impossible to challenge claims on factual grounds because evidence is hard to come by. In a related case involving Dole, the Texas plaintiffs firm Provost Umphrey is asking a federal judge in Miami to enforce a $98.5 million judgment obtained by banana farm workers in Nicaragua. Never mind that the Nicaraguan judge who made the initial ruling is the same one cited by Judge Chaney for allegedly taking bribes and fixing cases against U.S. firms.

Judge Chaney's actions are a welcome act of legal hygiene and an example for other judges of how to police false legal claims.

from the Wall Street Journal, 2009-May-2, p.A10:

The AIPAC Case Fallout
Israel, 'espionage,' and a now-failed political prosecution.

Four years, millions in legal fees and a half-dozen conspiracy theories later, the Justice Department dropped its case yesterday against the two former staffers of the American Israel Public Affairs Committee (Aipac) indicted in 2005 on espionage-related charges. Now where do Steve Rosen and Keith Weissman -- and everyone else besmirched, including California Democrat Jane Harman -- apply to get their reputations back?

Attorney General Eric Holder deserves credit for dropping the charges, though we wish he had also announced that the case should never have been brought. Instead, the prosecution acted only after adverse judicial rulings made the case virtually impossible to win. Among the tests imposed on the prosecution by a federal judge was whether the "secrets" Messrs. Rosen and Weissman supposedly disseminated to colleagues, journalists and an Israeli embassy official were closely held, and whether the pair relayed them in bad faith.

Nothing like that happened here. The core of the prosecution's case concerns a memo sent to the men from Defense Department analyst Larry Franklin -- now serving a 12-year prison sentence -- about internal White House deliberations on Iran policy. The government also used Mr. Franklin (whose main offense was taking classified documents home) to plant an apparently bogus story with Mr. Weissman claiming that American and Israeli lives were in imminent danger.

None of this should have amounted to much, and certainly not criminal indictments under the archaic 1917 Espionage Act. Reporting on White House policy deliberation is the daily bread of any Washington reporter: If the offense were really criminal, half the Beltway press corps could be indicted. Mr. Franklin's mishandling of classified documents deserved sanction, but 12 years in jail is far worse than the misdemeanor and fine meted out to former National Security Adviser Sandy Berger for stuffing secret documents in his clothing. As for the planted story, putting the defendants to a moral quandary -- share classified information and save lives; keep it secret and let people die -- is the worst form of entrapment.

But Washington is not a normal world, and this prosecution needs to be understood in the context in the aftermath of the Iraq invasion and the swirl of conspiracy theories about "neocon" and Jewish influence over U.S. policy. In this bizarro reading of events, President Bush, Dick Cheney, Don Rumsfeld, and Condoleezza Rice chose to invade Iraq due to the influence of Jewish officials such as Paul Wolfowitz, Doug Feith, Scooter Libby and Richard Perle. One sign of those times: In the immediate aftermath of Mr. Franklin's arrest, CBS's Lesley Stahl asked whether "Israel [used] the analyst to try to influence U.S. policy on the war in Iraq?" In other words, the Aipac case resembled a political hit more than a legitimate "espionage" case.

The same goes for the recent fallout involving Ms. Harman. Late last month, Congressional Quarterly reported that Ms. Harman and a person described as a "suspected Israeli agent" had been wiretapped by the government sometime before the 2006 election in which she allegedly agreed to intervene with the Bush Administration on behalf of Messrs. Weissman and Rosen.

In exchange, the unnamed "agent" is said to have promised Ms. Harman lobbying help in her effort to chair the Intelligence Committee, where she was then the ranking minority member, if Democrats won Congress. The Democrats did win the House, but Speaker Nancy Pelosi passed over Ms. Harman in favor of Texan Sylvestre Reyes.

At this point, things get murkier. Who did the wiretapping? CQ reported that it was the National Security Agency. But Director of National Intelligence Dennis Blair denies this, and other news stories claim the wiretap was placed by the FBI. When did the wiretap take place? Different accounts put the date at either 2005 or 2006, a material point since in 2005 it was hardly clear the Democrats would take the House. Who was the "suspected Israeli agent"? Ms. Harman has said she doesn't even remember the conversation, but she is certain that anyone she would have discussed the case with would have been "an American citizen."

As for the charge of influence peddling, Ms. Harman told MSNBC's Andrea Mitchell that she "didn't contact the Justice Department or anybody in the Administration, ever, asking for lenient sentences for anybody." Ms. Harman has also written Attorney General Holder demanding that he release the full transcript of the wiretapped conversation. We're told Mr. Holder hasn't responded.

Now the Harman story is spinning off in even stranger directions, such as whether then Attorney General Alberto Gonzales quashed the Justice Department inquiry because Ms. Harman could be helpful in asking the New York Times not to expose the existence of warrantless wiretaps of foreign terrorists. Ms. Harman is also being attacked by noted jurists Jon Stewart and Rachel Maddow, and she may face a left-wing primary challenge. Especially after the Ted Stevens debacle, we'd have thought Mr. Holder would want to clear the air.

Mr. Holder should also re-examine the Aipac case from start to finish. The real scandal in this case starts with the attempted criminalization of policy differences and legitimate lobbying, and ends up in the wiretapping of Congress and the wrecked careers of Messrs. Rosen, Weissman and Franklin. This smacks of abuse of power, and somebody at Justice should be held to account.

from the Wall Street Journal, 2009-May-2, by Kimberley A. Strassel:

He Fought the Tort Bar -- and Won
Thanks to a CEO's persistence, a federal judge discovers massive lawsuit fraud.

Berkeley Springs, W. Va.

Officially, John A. Ulizio is the CEO of U.S. Silica, one of the nation's largest producers of industrial sand. Unofficially, he's the man who fought the tort bar -- and won. It's a singular distinction in the world of runaway lawsuits.

Clad in a hardhat and boots, standing in a quarry in which giant haul trucks carry Flintstone-sized boulders, the 53-year-old Mr. Ulizio seems an unlikely foe of today's slick plaintiffs' bar. The son of a Pennsylvania steel worker, he is blunt-spoken, works in a little-noticed industry, and likes to point out he's a Democrat ("probably the only one in the building.") What a cursory observation of Mr. Ulizio misses is his own law degree, and his steely sense of right and wrong.

In 2003 alone -- the year he took the company's top job -- U.S. Silica was served with nearly 20,000 lawsuits claiming it had caused silicosis -- a serious, if rare, lung disease. The tort bar saw silica as the "new asbestos," says Mr. Ulizio, and he had visions of his century-old concern going bankrupt, along with dozens of others.

Instead what ensued was a legal thriller, in which the defendants not only beat the suits, but exposed a mob of lawyers and doctors who were fabricating cases, and who are now under investigation. This year his company has been hit by only one silicosis claim. "We hoped the truth would prevail eventually," he says, back in the conference room of the company's modest headquarters. The realist adds: "It worked, but it didn't have to."

And that might be the most disturbing part of Mr. Ulizio's tale. "When you have an entire system that condones these lawsuits, that does nothing to police its own, where there are no consequences, right or wrong has nothing to do with it. It's a coin flip."

In June of 2005, Texas federal Judge Janice Graham Jack -- who was overseeing 9,000 silicosis lawsuits aggregated in her court -- issued an opinion that shook the tort bar to its core. During depositions, the handful of doctors who provided nearly all these diagnoses began to crack, admitting they'd never seen patients, that their secretaries had filled out forms, and that lawyers had told them what to write. It came out that two-thirds of those claiming to have silicosis had previously claimed to asbestosis -- a near medical impossibility.

Judge Jack's 249-page scathing opinion unraveled a scam of giant proportions. She accused the doctors and lawyers of "diagnoses that were manufactured for money," provided evidence of fraud, required a Houston plaintiff's firm to pay defense legal costs, and issued sanctions.

Within a few months, Congress and a federal grand jury were investigating. For U.S. Silica, named in nearly every suit, it was a fairy tale end to a nightmare. Even Mr. Ulizio was shocked. "It was like, 'Oh my God, finally, after all these years, somebody is seeing the truth.'"

Years being the operative word. Mr. Ulizio is a humble guy, and gruffly waves off suggestions that he or his company played any special role in this victory. He ascribes the Texas success to all the defendants equally, as well as the willingness of insurers to join the battle, and to enlist top-notch attorneys. But that is to ignore the knowledge and the backbone Mr. Ulizio and U.S. Silica brought to this fight.

Silicosis litigation isn't new. Silica is one of those products that has been around forever and is used in just about everything, though nobody knows it. The West Virginia factory is a grinding operation: The company mills sand into different sizes, which is then used in everything from glass, to Kevlar, to paint, to the molds used to create steel forms. With silica comes silica dust, which has been health concern since well before 1936, when Labor Secretary Frances Perkins first held a conference on silicosis.

U.S. Silica has always been a prime target of these suits. Within its own factory, safety is intense. Workers aren't allowed on the floor without respirators (nor me, for that matter). Much of the plant has been automated to minimize contact with dust, and vacuums suck up particles. Plastered on every door leading into the plant, and on every bag of silica going out, are giant, neon warnings about the dangers of dust.

The company has nonetheless been militant in defending against lawsuits. This is Mr. Ulizio's history and specialty, having represented silica defendants prior to joining the company in 1991, and then handling U.S. Silica's litigation as its counsel. Says Mr. Ulizio: "There was a decision made here early on, and it was the right decision, that as a sand seller we have no duty to warn, say, the people who work in a foundry. Why? Because foundries . . . know all about silicosis -- there are documents showing that going back to the teens and '20s -- and foundries are the ones who create silica dust or control silica dust, and we have no control over that operation."

Over decades of litigation, the company picked its suits carefully, with an eye to setting broad legal precedents in key jurisdictions. It fought off successive waves of litigation -- in the 1980s from workers at a foundry in Lynchburg, Va., and later from steelworkers in Pennsylvania. Another of Mr. Ulizio's rules was "to treat cases like real cases," a tactic that would prove important in the later Texas litigation. "There is temptation amongst defendants to treat these as a claims process. We tried not to do that, even in cases we settled. We tried to treat each as a real case, where you take depositions, you have people who know what they are doing asking the questions, you demand real medical evidence," he says.

There were losses, some of which made Mr. Ulizio despair. "The first time we ever lost a case in trial, it was 2001. We tried it in Beaumont, Texas, and lost $7.5 million. . . . The judge sat there through the trial reading a newspaper. At one point an objection was made, the bailiff taps him on the shoulder and says 'judge, objection is being made.' He looks at our lawyer and says 'overruled.' The plaintiffs' lawyer raises his hand and says 'no, judge, it was me.' He says 'sustained' and goes back to reading the paper."

As it happens, the industry as a whole lost some big ones around that time, kicking off the tidal wave. "Understand, silica litigation isn't about whether people have silicosis; it's about whether the lawyers can use the legal system to make money. When there is no history of big verdicts, when the legal industry has been losing cases, then it has a limited desire to pursue a big model. But once you had a few settlements and verdicts . . . people got interested," says Mr. Ulizio.

Plaintiffs lawyer firms began sending out direct mailings, running ads, and going through their inventory -- all to gin up big numbers of claims, which they filed against dozens of companies. In 1998, U.S. Silica fielded 198 silicosis claims. In 2001: 1,356. In 2002: 5,277. In 2003: 19,865. The tort lawyers were smart, and filed in former judicial hell-holes like Mississippi, where U.S. Silica hadn't established legal precedents.

Mr. Ulizio painfully remembers those days. The cost of his litigation at one point equaled about 50 cents out of every ton of sand he sold. Credit-rating agencies fretted. Potential hires expressed concern about the company's future, and workers worried they'd lose their pensions. Workers' compensation rates soared. "It was doom-and-gloom bad," he says.

The company was also now a victim of a "mass" tort, designed to force settlements. Mr. Ulizio shares a memo that plaintiffs' lawyer Joe Gibson sent to silica defendants in 2004 with a blunt offer: Settle our 9,000 cases for $900 million, or pay $1.5 billion in pretrial discovery alone, plus an even bigger verdict. "That's the genius of the economics of litigation from the plaintiffs' perspective. Sue a lot of people, sue on behalf of a lot of plaintiffs, get into an adverse jurisdiction, and then don't make too big of a demand, so you can settle it for a relatively small percentage of the cost of defending the case," Mr. Ulizio says.

He didn't settle: He went public. Private companies tend not to air their litigation laundry, but the silica CEO talked to the media, detailed his lawsuit figures, ginned up coverage of the lawyers' tactics. The growing story emboldened other defendants to fight back. U.S. Silica also pushed hard, behind the scenes, to depose, investigate and fight.

The defendants had already made one bold move, receiving permission to aggregate the suits in front of Judge Jack. It raised the stakes, but in retrospect it was what also allowed defendants to connect the nefarious doctor-lawyer dots. "It was very important to the effort, because it allowed us to see the pattern, and present that pattern to the judge," he says.

Mr. Ulizio nonetheless credits a lot of the victory to luck, and mistakes by the other side. "The real advantage was simply that asbestos had preceded us, and the plaintiffs' side overreached. They had asbestos plaintiffs who were diagnosed with asbestosis but not silicosis, rediagnosed with silicosis but not asbestosis, by the same doctor, with the same X-ray. They laid the seeds for their own destruction."

Even with all that, Mr. Ulizio feared they'd lose. "There was no reason to believe Judge Jack would be as good as she was before she was as good as she was," he says. "One of the dirty little secrets of this litigation is that it didn't have to turn out the way it did. All's well that end's well is the cliché, right? First it's got to end well."

The lawsuits are over, but Mr. Ulizio remains furious that no one has been held responsible for the Texas mess. I note that some of the doctors lost their medical licenses. "That's fine," he says. "But at the end of the day, the lawyers are driving this. The lawyers are the ones who make the money. And nobody, absolutely nobody, does anything about it."

So what's the answer? Legislation reining in the tort bar? More Judge Jacks? "The court is part of the system, and its part of the problem. You can say, 'we should have more judicial supervision.' But hey, the judge in Beaumont, Texas, he supervised his court -- he just supervised it the wrong way. I'd also like to think you don't need to legislate everything."

He instead points to legal associations. "It starts with the organized bar. The American Bar Association, the state bar associations, they are supposed to be the self-governing bodies that govern lawyer behavior. Or, state disciplinary boards. If you are creating out of thin air a set of facts that leads you to file litigation, I would like to think that violates some state disciplinary rule," he says. "And look, too, you've got to prosecute crimes. There has to be something that results in a consequence for this behavior," adds Mr. Ulizio.

At times, Mr. Ulizio finds it all a bit surreal. "We mine and sell sand. Sand. That's all we do. We aren't the evil empire. We aren't manufacturing some exotic chemical that we're unleashing on the world. We're taking sand out of the ground. We don't even process it, except to clean it up a little and size it. And we are selling something that has been around forever, the dangers from which have been known since well before anybody involved in this litigation was even born," he says.

He looks at me as if to say, "Can you believe it?" I wish I could tell the tort warrior I couldn't.

from the Wall Street Journal, 2009-Apr-14, p.A13, by Holman W. Jenkins, Jr.:

The War on Short Yellows

A Journal front-pager recently noted an Arizona man charged with attacking a freeway speed camera with a pick ax. Here's the rest of the story: He was fined $3,500, not given a parade.

But don't despair. We still live in a democracy. One Arizona sheriff recently proved you could get elected by opposing speed cameras. Meanwhile, the state legislature is considering bills to dismantle the system created by Gov. Janet Napolitano when she faced a gaping budget deficit, before she escaped to the Obama Department of Homeland Security. Petitioners in Arizona are also gathering signatures to put the question directly before voters -- speed cameras have never won when submitted to voters.

Even the Scottsdale City Council recently voted not to oppose the anti-camera bills in the state legislature.

Why is this important? Because Arizona, specifically Scottsdale, is home to the two biggest companies, American Traffic Solutions and Redflex Traffic Systems, in the incestuous world of promoting and operating traffic cameras for revenue-hungry governments.

Laid to rest long ago should have been the pretense that the goal is "safety," not chasing cash. New York State, sinking under budget shortfalls, last week authorized a batch of new red-light cameras around the state. A recent investigation by the Detroit News showed that even conventional ticket-writing is driven by revenue needs. Said one cop: "When you're being told how many tickets you need to write, to me that's a quota."

Consider: Red-light running and speeding, the two main uses of traffic cameras, are implicated in fewer than 8% of accidents. A far more prevalent cause of nondrunken accidents is driver inattention -- one study estimated, in a typical case the driver's eyes are diverted from the road for a full three seconds or more, fidgeting with a cellphone, disciplining the kids in the back seat, snoozing, blotting up spilled coffee, etc.

What's more, if not for the idiotic diversion of research dollars to fuel economy, the most highly touted auto-industry breakthroughs today would be exactly in this area. Available now or coming soon are devices that warn a driver when he's wandering out of his lane or when another car is in his blind spot, even applying the brakes to prevent a collision.

Stop-light cameras are especially pernicious. Where red-light running is a problem, the solution is usually a longer yellow -- at least three seconds is the recommended minimum for a 25-mph intersection. Drivers do not blast through red lights on purpose. Even the federal government encourages the use of engineering solutions before installing a red-light camera.

Yet as the late and lamented Rocky Mountain News found when Denver was sizing up intersections for cameras a year ago, many of those deemed accident-prone had yellows timed at the state minimum of three seconds or even less. Citizen groups around the country have more than once raised suspicions of authorities shortening yellows to ring up more tickets. Half a dozen Georgia towns just cancelled their camera contracts after a state law mandating the addition of an extra second to the yellow made them unprofitable.

Even defenders of photo enforcement acknowledge studies showing that red-light cameras (which are designed to be conspicuous to motorists) lead to an increase in rear-end collisions as drivers slam on the brakes. Defenders claim the trade-off is still a net gain because of reduced deadly T-bones in the middle of the intersection. But the real lesson may be that both types of accidents would be reduced by a longer yellow.

Britain has gone furthest in using cameras for comprehensive auto surveillance, and now says it's capable of monitoring every car trip in the U.K. and keeping a record for five years. Most traffic cameras are "on" all the time, and capable of being networked with plate- and even face-recognition software. In Britain, the data yielded will be incorporated in a database of all kinds of personal information and camera observations to enable "data mining" to let the government know who's doing what, when and where.

Never in America, you say? Massachusetts Gov. Deval Patrick is moving ahead with a plan for mandatory GPS devices in cars that would be read at gas pumps and automatically charge drivers for miles driven.

Your car already contains electronics that could report on, say, the quality of your emissions. How long before government knows not just where you went, but how fast and how much CO2 you vented in the process, and thanks to your email and phone records, whether you were visiting somebody or doing something that might warrant a further look?

from the Wall Street Journal, 2009-Apr-11, by Mackubin Thomas Owens:

The Pirates Challenge Obama's Pre-9/11 Mentality
Distinctions between lawful and unlawful combatants go back to Roman times.

When Somali pirates hijacked the U.S.-flagged Maersk Alabama this week and took 20 Americans hostage, President Barack Obama refused to comment. It seems that our new president is desperate to do everything he can to distance himself from his predecessor, which is why his team has launched a campaign to rebrand the War on Terror. The results are mystifying. "Overseas contingency operations" is the new name for the war, while "man-caused disasters" is a euphemism for terrorist attacks.

In this new rhetorical regime, the administration criticizes President George W. Bush for his "illegal" policies with respect to the detention center at Guantanamo Bay, and claims that the treatment of the detainees themselves constitutes "torture."

But while they've certainly made cosmetic changes, many claim the Obama administration has left the substance of Bush's approach intact.

Attorney General Eric Holder added to this perception when, after visiting Guantanamo, he acknowledged that the facility is very well run and that implementing Mr. Obama's promise to close it down will be difficult. While renouncing the term "enemy combatant," the Obama administration acknowledges the reality that no matter what we call those detained at Guantanamo, the detainees are still not entitled to prisoner-of-war status because they have violated the laws of war by killing civilians and fighting out of uniform. Instead of calling the detainees enemy combatants, the administration has opted to refer to them as "individuals captured in connection with armed conflicts and counterterrorism operations," or "members of enemy forces," or "persons who [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks."

Though these changes might seem superficial, unfortunately, they represent a substantive shift. They signal a return to the policy mindset that existed before 9/11, and the consequence will be material harm to U.S. security.

First, in holding that the president's power to indefinitely detain without legal charges is derived from Congress's authorization for the Use of Military Force Act (passed in the aftermath of 9/11), the Justice Department has undercut the president's own war power under the Constitution. This is an inherent executive power that has been recognized since at least the presidency of Abraham Lincoln.

As Lincoln wrote to James Conkling in August 1863, "I think the Constitution invests its commander-in-chief, with the law of war, in time of war." In addition to the commander-in-chief clause of Article II, Lincoln found his war power in his presidential oath "to preserve, protect, and defend the Constitution of the United States."

Second, the various new substitutes for "unlawful enemy combatant" abolish an important distinction in traditional international law. As the eminent military historian Sir Michael Howard argued shortly after 9/11, the status of al Qaeda terrorists is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval and early modern European jurisprudence. According to Mr. Howard, the Romans distinguished between bellum (war against legitimus hostis, a legitimate enemy) and guerra (war against latrunculi, pirates, robbers, brigands and outlaws).

Bellum became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to guerra. Indeed, punishment for latrunculi, "the common enemies of mankind," traditionally has been summary execution.

Though they don't often employ the term, many legal experts agree that al Qaeda fighters are latrunculi -- hardly distinguishable by their actions from pirates and the like. Robert Kogod Goldman, an American University law professor has commented: "I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war." And according to Marc Cogen, a professor of international law at Ghent University in Belgium, "no 'terrorist organization' thus far has been deemed a combatant under the laws of armed conflict." Thus al Qaeda members "can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities." But the Obama administration is about to extend legal rights -- intended to protect civilians -- to the very latrunculi who want to blow them up by considering the possibility of trying them in U.S. courts. Indeed, Attorney General Holder did not rule out trying the Somali pirates.

Some in Congress want to go further than the Obama team. Rather than focusing their attention on the terrorists, these politicians wish to criminalize the behavior of Bush administration officials for actions they took to protect Americans, and that fell well short of those taken by Lincoln in suppressing the Rebellion of 1861. Thus Sen. Patrick Leahy (D., Vt.), aided and abetted by my own Sen. Sheldon Whitehouse (D., R.I), have begun hearings on Mr. Leahy's proposal for a "Truth Commission" to investigate the Bush administration's interrogation policies.

The mantra of Bush critics has been that the previous administration "tortured" detainees. But this is nonsense. At issue is the CIA's waterboarding of three high-ranking latrunculi who had been instrumental in planning and executing attacks that killed thousands of Americans. These individuals had been trained to resist conventional interrogation methods and were thought to have information about impending attacks.

What makes the Leahy-Whitehouse show trials most appalling -- and hypocritical -- is that Congress was briefed on the enhanced interrogation methods in September 2002. At the time, according to the Washington Post, members of Congress from both parties -- including current Speaker of the House Nancy Pelosi -- wanted to ensure that the interrogations were tough enough to get the necessary intelligence from the captured terrorists. As the Post reported, "there was no objecting, no hand-wringing," and according to a U.S. official present during the briefings, "the attitude was, 'We don't care what you do to those guys as long as you get the information you need to protect the American people.'" But of course, according to a source looking back on that period, "the environment was different then because we were closer to Sept. 11 and people were still in a panic."

And therein lies the problem. Too many of our leaders have forgotten that we are at war with latrunculi who wish to destroy us. Anyone who doubts this need only read the recent statement by the five detainees at Guantanamo charged with planning the 9/11 attacks in which they describe the charge that they murdered Americans very clearly -- as a "badge of honor."

Mr. Owens is a professor at the Naval War College and editor of Orbis, the journal of the Foreign Policy Research Institute.

from the Wall Street Journal, 2009-Mar-23:

A Smoot-Hawley Moment?
Congress on AIG and banks: 'Oppressive, unjust and tyrannical.'

When does a single policy blunder herald much larger economic damage? Sometimes it's hard to know ahead of time. Few in Congress thought the Smoot-Hawley tariff was a disaster in 1930, but it led to retaliation and a collapse of world trade. The question amid Washington's AIG bonus panic is whether Congress's war on private contracts and the financial system is a similarly destructive moment.

It is certainly one of the more amazing and senseless acts of political retribution in American history. In its bipartisan rage, the House saw fit last week not merely to punish the employees of AIG's Financial Products unit that the company still needs to safely unwind credit default swaps. The Members voted, 328-93, to slap a 90% tax on the bonuses of anyone at every bank receiving $5 billion in TARP money who earns more than $250,000 a year. A draft Senate version is even broader. Never mind if the bonus was earned last year or earlier, or under a legally binding employment contract. The confiscatory tax will apply ex post facto.

Never mind, too, that such punitive laws were expressly deplored by America's Founders. In Federalist 44, James Madison warned that "Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation."

In 1827 in Ogden v. Saunders, the U.S. Supreme Court issued a similar warning about legislative limits under Article I, Section 10 of the Constitution: "The states are forbidden to pass any bill of attainder or ex post facto law, by which a man shall be punished criminally or penally by loss of life of his liberty, property, or reputation for an act which, at the time of its commission, violated no existing law of the land," wrote Justice Bushrod Washington.

"Why did the authors of the Constitution turn their attention to this subject, which, at the first blush, would appear to be peculiarly fit to be left to the discretion of those who have the police and good government of the state under their management and control? The only answer to be given is because laws of this character are oppressive, unjust, and tyrannical, and as such are condemned by the universal sentence of civilized man."

Yes, Article I, Section 10 applies to the states, and this is a federal law. Congress may also figure it avoids the "bill of attainder" objection by applying the law to individuals at several companies receiving TARP money. But Congress's willingness to wreak such vengeance against a specific class of Americans is still as offensive as a matter of principle as Justice Washington and the Federalist Papers noted. The Founders feared the punitive whim of the legislative mob as much as they did the tyranny of a King.

The House legislation may also be unconstitutional on equal protection grounds given that it treats a homogeneous group of individuals differently depending on which companies they work for. It is one thing to treat the companies that receive federal funds differently from those that don't. But the individuals receiving bonuses may have nothing to do with the decision to receive TARP money. The House's 90% tax on some bankers but not others is only a step away from deciding to impose a higher tax rate on employees of any company out of political favor -- say, tobacco companies, or in the next Republican Congress, the New York Times Co.

Which brings us to the Smoot-Hawley analogy. With such a sweeping assault on contracts and punitive taxation, Congress is introducing an element of political risk to economic decisions that is typical of Argentina or Russia. The sanctity of U.S. contracts has long been one of America's competitive advantages in luring capital, a counterpoint to our lottery tort system and costly regulation. Meanwhile, the 90% tax rate marks a return to the pre-Reagan era when Congress and the political class behaved as if taxes didn't matter to growth or incentives. It is a revival of the philosophy of redistributionist "justice" of the 1930s, when capital went on strike for an entire decade.

The financial system will suffer in particular, just when the Obama Administration is desperately seeking more private capital to ride out future losses. Facing such limits on the ability to reward talent, every bank CEO will try to pay off the TARP as soon as possible, whether or not this leaves the bank with a weaker capital base. Hedge funds and other investors that Treasury needs for its new Public-Private Investment Program, or for the Federal Reserve's TALF, will also be warier, if they'll play at all. Treasury may promise nothing punitive for these programs, but that's also what it said about the TARP.

The other Smoot-Hawley comparison relates to our new President. Herbert Hoover sent mixed signals about the tariff until he finally bent to a panicked GOP Congress. President Obama has behaved in the past week as if he can appease and "channel" Congressional anger without being run over himself. So not only did he incite the Members last Monday, he welcomed the House bill on Thursday. By the weekend, cooler White House heads were whispering that the mob had gone too far, but it will take more than words to kill this terrible legislation. Mr. Obama will have to fire a gun in the air -- which means threatening a veto.

On Inauguration Day, we wrote that our young President has a first-class intellect and temperament. Our question was whether he is tough enough. So far the answer is no. He has failed to stand up to a Congress of his own party on anything difficult -- from stimulus priorities, to earmarks, to protectionism against Mexican trucks. Mr. Obama needs to face down the AIG mob, or his Presidency may be its next victim.

from the Wall Street Journal, 2009-Jan-25, by Philip K. Howard:

How Modern Law Makes Us Powerless
The real barrier to Barack Obama's 'responsibility' era.

Calling for a "new era of responsibility" in his inaugural address, President Barack Obama reminded us that there are no limits to "what free men and women can achieve." Indeed. America achieved greatness as the can-do society. This is, after all, the country of Thomas Paine and barn raisings, of Grange halls and Google. Other countries shared, at least in part, our political freedoms, but America had something different -- a belief in the power of each individual. President Obama's clarion call of self-determination -- "Yes We Can" -- hearkens back to the core of our culture.

But there's a threshold problem for our new president. Americans don't feel free to reach inside themselves and make a difference. The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices. All around us are warnings and legal risks. The modern credo is not "Yes We Can" but "No You Can't." Our sense of powerlessness is pervasive. Those who deal with the public are the most discouraged. Most doctors say they wouldn't advise their children to go into medicine. Government service is seen as a bureaucratic morass, not a noble calling. Make a difference? You can't even show basic human kindness for fear of legal action. Teachers across America are instructed never to put an arm around a crying child.

The idea of freedom as personal power got pushed aside in recent decades by a new idea of freedom -- where the focus is on the rights of whoever might disagree. Daily life in America has been transformed. Ordinary choices -- by teachers, doctors, officials, managers, even volunteers -- are paralyzed by legal self-consciousness. Did you check the rules? Who will be responsible if there's an accident? A pediatrician in North Carolina noted that "I don't deal with patients the same way any more. You wouldn't want to say something off the cuff that might be used against you."

Here we stand, facing the worst economy since the Great Depression, and Americans no longer feel free to do anything about it. We have lost the idea, at every level of social life, that people can grab hold of a problem and fix it. Defensiveness has swept across the country like a cold wave. We have become a culture of rule followers, trained to frame every solution in terms of existing law or possible legal risk. The person of responsibility is replaced by the person of caution. When in doubt, don't.

All this law, we're told, is just the price of making sure society is in working order. But society is not working. Disorder disrupts learning all day long in many public schools -- the result in part, studies by NYU Professor Richard Arum found, of the rise of student rights. Health care is like a nervous breakdown in slow motion. Costs are out of control, yet the incentive for doctors is to order whatever tests the insurance will pay for. Taking risks is no longer the badge of courage, but reason enough to get sued. There's an epidemic of child obesity, but kids aren't allowed to take the normal risks of childhood. Broward County, Fla., has even banned running at recess.

The flaw, and the cure, lie in our conception of freedom. We think of freedom as political freedom. We're certainly free to live and work where we want, and to pull the lever in the ballot box. But freedom should also include the power of personal conviction and the authority to use your common sense. Analyzing the American character, Alexis de Tocqueville, considered "freedom less necessary in great things than in little ones. . . . Subjection in minor affairs does not drive men to resistance, but it crosses them at every turn, till they are led to sacrifice their own will. Thus their spirit is gradually broken and their character enervated."

This is not an ideological point. Freedom in daily choices is essential for practical reasons -- necessary for government officials and judges as well as for teachers, doctors and entrepreneurs. The new legal order doesn't honor the individuality of human accomplishment. People accomplish things by focusing on the goal, and letting their instincts, mainly subconscious, try to get them there. "Amazingly few people," management guru Peter Drucker observed, "know how they get things done." Most things happen, the philosopher Michael Polanyi wrote, through "the usual process of trial and error by which we feel our way to success." Thomas Edison put it this way: "Nothing that's any good works by itself. You got to make the damn thing work."

Modern law pulls the rug out from under all those human powers and substitutes instead a debilitating self-consciousness. Teachers lose their authority, Prof. Arum found, because the overhang of law causes "hesitation, doubt and weakening of conviction." Skyrocketing health-care costs are impossible to contain as long as doctors go through the day thinking about how they will defend themselves if a sick person sues.

The overlay of law on daily choices destroys the human instinct needed to get things done. Bureaucracy can't teach. Rules don't make things happen. Accomplishment is personal. Anyone who has felt the pride of a job well done knows this.

How do we restore Americans' freedom in daily choices? Freedom is notoriously malleable towards self-interest. "We all declare for liberty," Abraham Lincoln observed, "but in using the same word we do not all mean the same thing."

Freedom, however, is not just a shoving match. Freedom has a formal structure. It has two components:

1) Law sets boundaries that proscribe what we must do or can't do -- you must not steal, you must pay taxes.

2) Those same legal boundaries protect an open field of free choice in all other matters.

The forgotten idea is the second component -- that law must affirmatively define an area free from legal interference. Law must provide "frontiers, not artificially drawn," as philosopher Isaiah Berlin put it, "within which men should be inviolable."

This idea has been lost to our age. When advancing the cause of freedom, law today is all proscription and no protection. There are no boundaries, just a moving mudbank comprised of accumulating bureaucracy and whatever claims people unilaterally choose to assert. People wade through law all day long. Any disagreement in the workplace, any accident, any incidental touching of a child, any sick person who gets sicker, any bad grade in school -- you name it. Law has poured into daily life.

The solution is not just to start paring back all the law -- that would take 10 lifetimes, like trying to prune the jungle. We need to abandon the idea that freedom is a legal maze, where each daily choice is like picking the right answer on a multiple-choice test. We need to set a new goal for law -- to define an open area of free choice. This requires judges and legislatures to affirmatively assert social norms of what's reasonable and what's not. "The first requirement of a sound body of law," Justice Oliver Wendell Holmes Jr. wrote, "is that it should correspond with the actual feelings and demands of the community."

The profile of authority structures needed to defend daily freedoms is not hard to imagine. Judges would aspire to keep lawsuits reasonable, understanding that what people sue for ends up defining the boundaries of free interaction. Schools would be run by the instincts and values of the humans in charge -- not by bureaucratic micromanagement -- and be held accountable for how they do. Government officials would have flexibility to meet public goals, also with accountability. Public choices would aspire to balance for the common good, not, generally, to appease someone's rights.

Reviving the can-do spirit that made America great requires a legal overhaul of historic dimension. We must scrape away decades of accumulated legal sediment and replace it with coherent legal goals and authority mechanisms, designed to affirmatively protect individual freedom in daily choices. "A little rebellion now and then is a good thing," Thomas Jefferson wrote to James Madison, "and as necessary in the political world as storms are in the physical . . . ." The goal is not to change our public goals. The goal is make it possible for free citizens to achieve them.

Mr. Howard, a lawyer, is chair of Common Good (www.commongood.org), and author of the new book "Life Without Lawyers," published this month by W.W. Norton & Co.

from the Wall Street Journal, 2009-Mar-30, by Victoria Toensing:

Welcome, Businessmen, to Government Oversight
Just wait until bureaucrats get their hands on your expense accounts.

"But I couldn't eat the meat. It was rainbow-colored," I protested to the Department of Justice clerk in charge of travel expense reimbursements.

The government rules allowed no flexibility. If you traveled on a plane that served food en route, as was the case on my late afternoon flight from D.C. to New Orleans, you could not get reimbursed for eating after you landed. It mattered not that the food looked spoiled, and that you really did spend money on a restaurant meal. There would be no, albeit meager, $20 reimbursement for that dinner.

Welcome AIG, Citicorp, GM and other stimulees to the financial controls of the stimulator, the federal government. But wait, it is now not just the recipients of Troubled Asset Relief Program (TARP) money and other taxpayer funds who are to be regulated. According to "sources," the White House is considering salary controls for "all financial institutions" and "publicly traded companies," not just those receiving "federal bailout money."

What's more, the feds intend to impose this by fiat, meaning regulations not legislation. When the government controls your salary, control over your financial compensation is not far behind. The government will apply "zero tolerance" and "avoid the appearance of" criteria to you just as it has done to government employees for decades. I worked under those rules during my 13-year government tenure. Trust me, business types, your new "no-nos" will take some getting used to.

When I first arrived at the Reagan Justice Department as deputy assistant attorney general, I was presented with a document for signature declaring that I would take "nothing of value" from someone other than my spouse, relatives or longtime friends during my tenure. I refused to sign.

Having spent the previous four years in the Senate as chief counsel to Intelligence Committee Chairman Barry Goldwater when Congress had not yet adopted the executive branch's gift rules, I was accustomed to a different financial culture. For example, sometimes foreign dignitaries would bring a nominal gift such as a pen or calendar to an initial meeting. I was told it was rude to reject the polite gesture.

Faced with this new zero-acceptance gift rule, the lawyer in me warned I could not say a calendar had no value. Yet why would I want to offend a person with whom I needed, and was expected to have, a professional relationship? Before signing the Justice Department document, I amended it to reflect that I would accept nothing over $25.

Early on I was invited to speak to an organization in my official capacity, and offered a $2,500 fee and a car to drive me from my home in Chevy Chase, Md., to the Baltimore forum. I knew to turn down the fee for myself but asked the Justice Department ethics attorney whether I could donate it to charity. "No," was the curt reply, because there was "a value" to me for giving money away. And the limo to get me there? That, too, was prohibited because it had "value."

I observed that the previous weekend the attorney general had appeared on "Face the Nation" and a CBS-supplied limo had taken him there. "Well, some things we just have to overlook" was the response. So the government's financial rules are cased in cement, except when they are not.

In the mid-1990s, the new Republican Congress decided to adopt the ban on gifts that had applied to the executive branch. That change led to the same silliness I had encountered with the Justice Department proffered pledge to take nothing of value.

For example, I was in a congressional office -- at that time out of government and representing a client -- when I overheard a young staffer's telephone call. Looking down at a pastry box on the table, she said sweetly, "I'm sorry we can't accept the cherry pie you left this morning. We can't take any gifts. If you can't come get it, we'll have to throw it out."

As we all know, those new rules kept us safe from the Jack Abramoff transgressions. Financial institutions, take note: You may still give but never receive a toaster.

I must admit to a twinge of sympathy for those who have never been subjected to the government's strictures, not just over spending and gift receiving but also over use of support personnel. You will now face a bare new world.

For years you have flourished in an atmosphere where the office was an extended support family. Some might even say office staff was treated like another "wife." No one ever blinked if private business secretaries were asked to perform personal tasks, such as picking up clothes from the cleaners, grocery shopping, or taking charge of personal bill paying. I would never have thought of asking my government secretary to make a dental appointment.

So, business world, prepare yourself for the new frugalities and pray they are short-lived. Perhaps one day, the taxpayers will have been repaid and the government will loosen the oversight because you are doing business on business money again. You can then recall the government control era and feel a rush, like I do now, when you no longer have to choose between rainbow-colored meat and paying for your own meal on a business trip.

Ms. Toensing is a lawyer in Washington.

from the Wall Street Journal, 2009-Apr-2:

Alberto Holder
And Democrats accused Republicans of politicizing Justice?

Perhaps you remember that theme from the Bush years, offered up every other day or so by the media-Democratic Party consortium. The claim was that political appointees at the Justice Department had run roughshod over career attorneys on tobacco, or civil rights, or something -- and that such horrors would never happen in the Age of Obama.

Well, the Washington Post reported yesterday as blatant a case of political interference as one can imagine involving Attorney General Eric Holder and Democratic legislation to give the District of Columbia a vote in Congress. Career attorneys at the Office of Legal Counsel wrote a memo earlier this year arguing that the proposed law is unconstitutional on grounds that only states can be represented in Congress. Mr. Holder wasn't pleased, so he asked lawyers at the Solicitor General's office for a second opinion, which miraculously found that the D.C. bill is constitutional.

We're in favor of Administrations making their own policy decisions, and an AG is certainly within his rights to overrule career attorneys. But it is extraordinary to overrule an Office of Legal Counsel opinion that we're told is rooted in Justice Department analysis going back to the JFK-LBJ Administrations. It is also extraordinary for an AG to so blatantly politicize the Solicitor General's office, which is the home of lawyers who argue cases before the Supreme Court. Imagine if Alberto Gonzales had tried that one.

Meanwhile, the Office of Legal Counsel opinion should give Congress pause about its rush to enact the law, which has already passed the Senate but is stalled in the House over D.C. gun rights . Democrats want the bill to pass so it gives them another House vote, while setting the stage for two more Democratic Senators. We'll gladly run the memo if someone leaks it to us, and, if nothing else, this should end the canard that only Republican Justice Departments are political.

from the Washington Post, 2009-Apr-8, p.A1, by Del Quentin Wilber, with researcher Julie Tate contributing:

Judge Orders Probe of Attorneys in Stevens Case
Prosecutor Misconduct Alleged In Former Senator's Trial

A federal judge focused scrutiny yesterday on a small Justice Department unit assigned to root out corruption when he dismissed the conviction of former senator Ted Stevens and appointed an outside lawyer to investigate allegations of misconduct by prosecutors.

The rare move to turn the investigation on the prosecutors themselves puts six federal lawyers, accused of mishandling evidence and witnesses, in the awkward position of becoming potential defendants in a criminal trial. It also creates a challenge for the Obama administration and Attorney General Eric H. Holder Jr., who must put a tainted prosecution behind him as he tries to remake the reputation of his department, which has been troubled in recent years.

The Justice Department would usually examine such accusations internally. But U.S. District Judge Emmet G. Sullivan said yesterday that he has no faith in such an investigation after seeing so much "shocking and disturbing" behavior by the government.

"In 25 years on the bench, I have never seen anything approaching the mishandling and misconduct that I have seen in this case," he said.

The judge aimed his criticism at prosecutors from the Justice Department's public integrity section, which has faced a shortage of experienced prosecutors and other resources, and has drawn attention for not winning convictions in some cases.

Yesterday, Sullivan said he would appoint his own "prosecutor" to determine whether the six Justice Department lawyers should face criminal contempt charges. Convictions on such charges could lead to fines or jail time for the lawyers, who range from front-line prosecutors to the head of the public integrity section.

Last week, a new team of prosecutors asked Sullivan to dismiss Stevens's conviction and indictment after uncovering notes from previous prosecutors that contradicted testimony from a key government witness. Under court rules, the notes should have been turned over to defense attorneys before the trial, but Stevens's legal team did not receive copies until last month. Stevens was convicted in October.

Paul O'Brien, one of the new Justice lawyers, told Sullivan that "we deeply, deeply regret that this occurred." Laura Sweeney, a department spokeswoman, said officials will review Sullivan's order "and will continue to cooperate with the court on this matter."

Yesterday's court action was the latest twist in the troubled prosecution of Stevens, 85, a Republican from Alaska who narrowly lost his reelection bid eight days after he was convicted of seven counts of lying about $250,000 in gifts he received and free renovations to his Alaska house.

Stevens, who smiled before the hearing as he shook hands with the new prosecutors, told Sullivan that the Justice Department had "nearly destroyed" his faith in the legal system. "Their conduct had consequences for me that they will never realize and can never be reversed," he said.

During and after the trial, the judge reprimanded prosecutors several times for how they had handled evidence and witnesses. He chastised prosecutors for allowing a witness to leave town. He grew more agitated when he learned that prosecutors had introduced evidence they knew was inaccurate, and he scolded them for not turning over exculpatory material to the defense.

After the trial, an FBI agent came forward to complain about the conduct of prosecutors and another agent. And in February, Sullivan held three prosecutors in contempt for not complying with an order to produce documents connected to an investigation of the FBI agent's allegations. The judge said the most recent allegation linked to prosecutors' notes was "the most shocking and serious" so far.

Sullivan asked Holder to better train prosecutors in how to handle evidence and witness statements that may be helpful to defendants.

He identified those being investigated for potential contempt violations as four lawyers with the public integrity section: William Welch II, who heads the unit; Brenda Morris, the lead prosecutor on the Stevens case; Nicholas Marsh and Edward Sullivan; and two federal prosecutors from Alaska, Joseph W. Bottini and James Goeke.

To investigate the allegations, Sullivan appointed Henry F. Schuelke III, a former federal prosecutor who the judge said is known for his "fairness, integrity and sound judgment." Schuelke declined to comment.

Under Sullivan's order, Schuelke will review records and e-mail and will interview prosecutors, FBI agents and key witnesses. He will then recommend whether any prosecutors should be tried on charges of intentionally violating Sullivan's orders or rules on handling evidence. The judge could hold a trial in which Schuelke acts as the prosecutor.

Much of yesterday's hearing focused on what transpired during an interview on April 15, 2008, with the key witness, Bill Allen, a close friend of Stevens who is the former chief executive of Veco, a now-defunct oil services company.

During the interview, according to the notes taken by two prosecutors, Allen said he did not recall talking to a friend of Stevens about sending the senator a bill for work done on the house in Alaska, the judge and prosecutors have said.

Under oath at trial, however, Allen testified that the friend told him to ignore a note Stevens sent seeking a bill for the remodeling.

"Bill, don't worry about getting a bill" for Stevens, Allen said the friend told him. "Ted is just covering his [expletive]."

That testimony buttressed prosecutors' arguments that Stevens knew he was receiving gifts and was trying to create a paper trail. But defense attorneys have argued that Allen lied on the stand and that prosecutors allowed it to happen.

"It is clear from the evidence that the government engaged in intentional misconduct," Brendan Sullivan, Stevens's lead attorney, told the judge.

from the Wall Street Journal, 2009-Apr-2:

The Ted Stevens Scandal
After yesterday's dismissal, time to put prosecutors in the dock.

Last fall, the senior Senator from Alaska was the poster octogenarian for political corruption. As of yesterday, Ted Stevens is merely another casualty of abusive prosecutors out to make a name for themselves.

The Justice Department yesterday moved to set aside an October conviction on ethics charges and forgo any future trials for Senator Stevens. He walks free, in other words, an innocent man. In the motion, Justice said it "recently discovered" that prosecutors withheld from the defense notes about an interview last April with the state's star witness, Bill Allen, that contradicted his subsequent testimony. Under the Brady Rule for evidence, Justice was obliged to share that with Senator Stevens's lawyers.

This was one of many prosecutorial missteps that came to light after Mr. Stevens was found guilty less than two weeks before Election Day. The Republican narrowly lost his bid for a seventh term. Attorney General Eric Holder yesterday promised a "thorough" probe into the conduct of prosecutors, which is the least the Department owes Mr. Stevens. The Obama Administration made the political calculation here to walk away from the original mistake made by Bush Justice rather than further embarrass the Department in post-trial hearings.

Recall the Stevens indictment was unveiled in July, on the eve of his primary. Announced by the acting head of Justice's Criminal Division, Bush-appointee Matthew Friedrich, the decision violated Department guidelines that prosecutors should avoid becoming players in elections. The charge was that the Senator failed to disclose that an Alaskan oil services company, Veco Corp., paid for renovation work on his chalet -- in essence, that he had lied on official forms. The Government never alleged, much less proved, the far more serious claim that Veco got anything in return from the Senator.

We've criticized Mr. Stevens for excessive spending and earmarks, and his habits contributed to the decline and fall of the GOP Congress. His explanation at trial about the gifts he received was hard to believe, and a D.C. jury inclined to dislike Republicans didn't believe it. But Mr. Stevens deserved a fair trial and the full protection of the law. He got neither here, and that's a larger scandal than anything he was charged with.

Evidence since the trial confirms suspicions that Justice lawyers were eager to bag such a prominent Senator before Election Day and before a new Administration brought in different political appointees. Perhaps they knew that a Republican Attorney General wouldn't dare overrule career lawyers prosecuting a GOP Senator, especially amid charges of "politicizing" Justice. (See editorial above.) They failed to share other documents with the defense and redacted exculpatory passages from witness transcripts. Chad Joy, an FBI "whistleblower," filed a complaint in early December, saying his partner, Mary Beth Kepner, had an unspecified "inappropriate relationship" with Mr. Allen, the prosecution witness.

U.S. District Judge Emmet Sullivan in February called the behavior of Justice lawyers "outrageous," taking the rare step of holding them in contempt. The Department subsequently replaced the entire prosecutorial team, which had been led by the chief of its public integrity section, William Welch. The Justice internal probe will have a lot of ground to cover. The government's lawyers likely miscarried justice and should be held to account. All of this comes too late for Mr. Stevens's political career, but perhaps not for other politically tempting prosecutorial targets.

from the Wall Street Journal, 2009-Apr-18:

Minnesota's Missing Votes
Some Senate absentee ballots are more equal than others.

Meanwhile, back in the Minnesota Senate recount, the three-judge panel reviewing the race has declared Democrat Al Franken the winner. Republican Norm Coleman intends to appeal to the state's Supreme Court, while Democrats and the press corps pressure him to surrender. We hope Mr. Coleman keeps fighting, because the outcome so far hangs on the fact that some votes have been counted differently from others.

Even after the recount and panel-findings, the 312-vote margin separating the two men equals about .01% of the 2.9 million votes cast. Even without any irregularities, this is as close to a "tie" as it gets. And there have been plenty of irregularities. By the end of the recount, the state was awash with evidence of duplicate ballot counting, newly discovered ballots, missing ballots, illegal voting, and wildly diverse standards as to which votes were counted. Any one of these issues was enough to throw the outcome into doubt. Combined, they created a taint more worthy of New Jersey than Minnesota.

The Coleman camp pushed for resolution of these problems during the recount, but it was stymied by a state canvassing board that cared more about preserving its "Minnesota nice" reputation than about making tough calls. The state Supreme Court also punted difficult questions. The mess then landed with the three-judge panel overseeing Mr. Coleman's contest trial, a panel that seemed out of its depth.

Case in point: the panel's dismal handling of absentee ballots. Early in the recount, the Franken team howled that some absentee votes had been erroneously rejected by local officials. We warned at the time that this was dangerous territory, designed to pressure election officials into accepting rejected ballots after the fact.

Yet instead of shutting this Franken request down, or early on issuing a clear set of rules as to which absentees were valid, the state Supreme Court and the canvassing board oversaw a haphazard process by which some counties submitted new batches to be included in the tally, while other counties did not. The resulting additional 933 ballots were largely responsible for Mr. Franken's narrow lead.

During the contest trial, the Coleman team presented evidence of a further 6,500 absentees that it felt deserved to be included under the process that had produced the prior 933. The three judges then finally defined what constituted a "legal" absentee ballot. Countable ballots, for instance, had to contain the signature of the voter, complete registration information, and proper witness credentials.

But the panel only applied these standards going forward, severely reducing the universe of additional absentees that the Coleman team could hope to have included. In the end, the three judges allowed only about 350 additional absentees to be counted. The panel also did nothing about the hundreds, possibly thousands, of absentees that have already been legally included, yet are now "illegal" according to the panel's own ex-post definition.

If all this sounds familiar, think Florida 2000. In that Presidential recount, officials couldn't decide what counted as a legal vote, and so different counties used different standards. The Florida Supreme Court made things worse by changing the rules after the fact. In Bush v. Gore, the U.S. Supreme Court ruled that this violated Constitutional principles of equal protection and due process, which require that every vote be accorded equal weight.

This will be a basis for Mr. Coleman's appeal to the Minnesota Supreme Court. Should that body be reluctant to publicly rebuke their judicial colleagues who sat on the contest panel, Mr. Coleman could also take his appeal to federal court. This could take months.

Another solution is to hold a special Senate election. Minnesota law does not specifically provide for such a runoff. However, the U.S. Constitution's 17th amendment does provide states with a roadmap for filling "vacancies," which might be a legal starting point for a do-over. Even before the shifting standards of the contest trial, the St. Paul Pioneer Press looked at the ballot-counting evidence and called for a revote. It could be that this is where the court case is leading in any event.

Democrats want to portray Mr. Coleman as a sore loser and make the Republican worry that he will ruin his chances for other political office. But Mr. Coleman has a legitimate grievance that not all votes have been treated equally. If the Franken standard of disparate absentee-voter treatment is allowed to stand, every close election will be settled by a legal scramble to change the vote-counting rules after Election Day. Minnesota should take the time to get this one right.

from the Wall Street Journal, 2009-Aug-12, p.A14:

Consumer Product Destruction
Congress's lead in toys panic is set to ruin more businesses.

Congress has the power to destroy, and that's precisely what it has done with its needless 2008 panic over lead in toys. More suffering is on the way for thousands of private businesses because Democrats refuse even to acknowledge, much less fix, their mistake.

Last year, Congress whooped through the Consumer Product Safety and Improvement Act to soothe fears about lead paint on toys from China. In its hurry, it imposed draconian lead limits that have ravaged businesses in industries from childrens books to thrift stores to ATVs since the law went into effect in February. This week, the screws are tightening further, as products directed at children under 12 must meet stricter lead standards, and companies face higher penalties for any mistakes. Because the rules are retroactive, toys or other items that are legal to sell on Thursday will be banned on Friday.

And this time Dick Durbin and Henry Waxman won't have a Republican to blame. Last spring, Congressional Democrats pounded the CPSC's Republican Chairman Nancy Nord for the law's failings. In an April letter to Ms. Nord, 28 Senators, including Mr. Durbin, Mark Pryor, Jay Rockefeller and Dianne Feinstein insisted that "Congress provided for agency discretion" and anticipated the CPSC would use that discretion in a way that "would recognize anomalies in implementation."

That was an attempt to dodge blame for the mess Congress created. The problem is that the law itself explicitly bars the CPSC from making judgments on product safety risks when handing down exclusions. In a July decision denying a petition by jewelry makers to exempt crystal and glass beads, new Obama Chairman Inez Tenenbaum cited the same issue that Nancy Nord did. To wit, for the agency to grant an exemption would mean using risk analysis, which is forbidden by the law. Such an interpretation "appears to be in direct conflict with the statutory language," Ms. Tenenbaum wrote.

Jewelry makers now join the legions of other businesses on the hook for millions of dollars in lost sales, inventory or testing costs despite products that pose little to no risk of lead poisoning to children. In the spring, thrift-store operators like Goodwill and the Salvation Army predicted that without regulatory relief they would have to destroy more than $100 million of inventory. Toy stores expected some $600 million in playthings that would have to be trashed and another $2 billion in losses across the industry. Motorcycle and ATV makers predicted total losses and business disruptions around $1 billion. Children's clothing stores have suffered huge losses, with Gymboree losing 40% of its market value overnight after reporting losses related to the House's lead-paint panic.

Eight bills have since been introduced in the House to remedy the problems, only to stall in the ideological quicksand of Mr. Waxman's Energy and Commerce Committee. He has so far failed even to hold hearings. Texas Senator Kay Bailey Hutchinson wants hearings in the Senate, but Democrats are too busy trying to nationalize the health-care industry.

Commissioner Tenenbaum says she favors a "common sense approach" to regulation, but she needs Congress to rewrite the law. Until Congress acts, products that pose no risk to consumers will continue to be recalled and destroyed while businesses struggle with additional costs in a recession.

from the Wall Street Journal, 2009-Mar-30:

Pelosi's Library Quarantine
The CPSC is left cleaning up the House Speaker's messy child-safety law.

It looks like "Jumanji" in local libraries these days, after the classic children's book about chaos unleashed by the failure to heed warnings. In February, an overzealous law governing lead in products resulted in toys going from store shelves to the trash heap. Now, confusion over how the rules affect children's books has led some libraries to rope off kids' sections.

Last summer, the Consumer Product Safety Commission (CPSC) interpreted the 2008 law to include children's books, though exactly what that means is anyone's guess. CPSC spokesman Scott Wolfson told the Associated Press that until the agency can give clearer guidance, especially on books published before 1986, public and school libraries "should take steps to ensure that the children aren't accessing those books." The agency hurried to say it didn't mean to tell libraries to toss the books, but that it is "investigating" whether there are unsafe lead levels.

Democrats in Congress have leapt to criticize acting CPSC Chairman Nancy Nord, in hopes President Obama will replace her. But the real culprit here isn't the CPSC, which is overwhelmed with requests from manufacturers trying to make sense of the chaos that Congress created. House Energy and Commerce Chairman Henry Waxman has dismissed efforts to improve the law, claiming the real problem is that "misinformation has spread" about the impact on businesses.

Older books pose hardly any danger, according to safety experts at the Centers for Disease Control. The problem is the ambiguity in a law that leaves businesses facing lawsuits if they can't prove their products are safe. In addition to libraries, thrift stores, church bazaars and small batch toymakers are also unclear what they can and can not sell. Makers of bicycles and ATVs have pulled youth models -- designed to increase safety -- off the showroom floor at a cost of hundreds of millions of dollars.

Nancy Pelosi boasted last summer that the toy safety law would mean products weren't merely made differently in the future but would be removed from the shelves today. That's the real source of this mayhem, as she was amply warned at the time by Democrat John Dingell, among others. Ms. Pelosi prevailed, and now the harm to thousands of businesses, charities and even public libraries is manifest. Since the House Speaker won't admit a mistake and fix the law, the CPSC must do what it can to prevent more damage to the already challenging economy.

from the Wall Street Journal, 2009-Mar-24:

Riverboat Robbery
When does a tax become an illegal 'taking'?

Illinois politics seems to be everywhere this year -- and now it may be headed to the Supreme Court in the form of a lawsuit brought against the state. The case, which has ties to impeached Illinois Governor Rod Blagojevich, could have an important impact on the definition of a "taking" under the Fifth Amendment -- as well as implications for the state's power of taxation.

In Empress Casino v. Giannoulias, the question involves the passage of a state law that took money from four riverboat casinos and gave it to five horse-racing tracks to use as purse money, among other things. According to the Illinois Supreme Court, the action cannot be considered a "taking" because it involved the transfer of money from one party to another, not the confiscation of land, as takings law has traditionally been applied. (The casinos are appealing to the U.S. Supremes, who will consider the certiorari petition soon.)

Property is property, however, whether it's the contents of a bank account, a factory, or a house with a white picket fence. If the Illinois Supreme Court ruling is allowed to stand, it could establish a precedent whereby the government may take money from any successful business to prop up a failing one. That means, in theory, the government could pass a law to take money from the successful dry cleaner on Main Street to subsidize the lousy one around the corner -- or from Barnes and Noble to subsidize the corner bookshop.

Broadly levied, wealth redistribution for public purpose has already been ruled Constitutional by the Supreme Court in the case of the income tax. Writ small, as it is in Empress Casino, it's a tool that might be wielded against unpopular industries and used by politicians to kiss up to favorite constituents. Think revenge of the aldermen.

This is close to the way things were working in Illinois under Mr. Blagojevich's leadership. The bill authorizing the transfer of money from the four riverboat casinos to the horse-racing industry came in the context of more than $340,000 in contributions by Balmoral and Maywood race track owner John Johnston and other associates to the Friends of Blagojevich between 2002 and 2007. Among the evidence in the Governor's impeachment trial were transcripts of Mr. Blagojevich and his brother Rob discussing some $100,000 in contributions as a quid pro quo for the legislation to benefit the racing industry. Yeehaw.

The question of when a regulation or a tax becomes a "taking" has found different opinions among the lower courts, making the case ripe for the Supreme Court to accept for review. Had the transfer from the casino to the track involved any asset other than money, it would have automatically been considered a taking, requiring the government to compensate. Nor would the offense have been diluted by the action serving the public interest.

In a time of fiscal pressure, Illinois-type actions may be increasingly tempting for state and local governments to get money to prop up politically favored businesses. In the long run, it will only encourage corruption and deny business the kind of transparency they need to operate and expand. As with all takings, for railroads or schools or highways, if the state believes that the increased purses of the Illinois racetrack are in the public interest, the state must be willing to pay for it.

from the Wall Street Journal, 2008-Oct-29, by Andrew P. Napolitano:

Most Presidents Ignore the Constitution
The government we have today is something the Founders could never have imagined.

In a radio interview in 2001, then-Illinois State Sen. Barack Obama noted -- somewhat ruefully -- that the same Supreme Court that ordered political and educational equality in the 1960s and 1970s did not bring about economic equality as well. Although Mr. Obama said he could come up with arguments for the constitutionality of such action, the plain meaning of the Constitution quite obviously prohibits it.

Mr. Obama is hardly alone in his expansive view of legitimate government. During the past month, Sen. John McCain (who, like Sen. Obama, voted in favor of the $700 billion bank bailout) has been advocating that $300 billion be spent to pay the monthly mortgage payments of those in danger of foreclosure. The federal government is legally powerless to do that, as well.

When Franklin Delano Roosevelt first proposed legislation that authorized the secretary of agriculture to engage in Soviet-style central planning -- a program so rigid that it regulated how much wheat a homeowner could grow for his own family's consumption -- he rejected arguments of unconstitutionality. He proclaimed that the Constitution was "quaint" and written in the "horse and buggy era," and predicted the public and the courts would agree with him.

Remember that FDR had taken -- and either Mr. Obama or Mr. McCain will soon take -- the oath to uphold that old-fashioned document, the one from which all presidential powers come.

Unfortunately, these presidential attitudes about the Constitution are par for the course. Beginning with John Adams, and proceeding to Abraham Lincoln, Woodrow Wilson and George W. Bush, Congress has enacted and the president has signed laws that criminalized political speech, suspended habeas corpus, compelled support for war, forbade freedom of contract, allowed the government to spy on Americans without a search warrant, and used taxpayer dollars to shore up failing private banks.

All of this legislation -- merely tips of an unconstitutional Big Government iceberg -- is so obviously in conflict with the plain words of the Constitution that one wonders how Congress gets away with it.

In virtually every generation and during virtually every presidency (Jefferson, Jackson and Cleveland are exceptions that come to mind) the popular branches of government have expanded their power. The air you breathe, the water you drink, the size of your toilet tank, the water pressure in your shower, the words you can speak under oath and in private, how your physician treats your illness, what your children study in grade school, how fast you can drive your car, and what you can drink before you drive it are all regulated by federal law. Congress has enacted over 4,000 federal crimes and written or authorized over one million pages of laws and regulations. Worse, we are expected by law to understand all of it.

The truth is that the Constitution grants Congress 17 specific (or "delegated") powers. And it commands in the Ninth and 10th Amendments that the powers not articulated and thus not delegated by the Constitution to Congress be reserved to the states and the people.

What's more, Congress can only use its delegated powers to legislate for the general welfare, meaning it cannot spend tax dollars on individuals or selected entities, but only for all of us. That is, it must spend in such a manner -- a post office, a military installation, a courthouse, for example -- that directly enhances everyone's welfare within the 17 delegated areas of congressional authority.

And Congress cannot deny the equal protection of the laws. Thus, it must treat similarly situated persons or entities in a similar manner. It cannot write laws that favor its political friends and burden its political enemies.

There is no power in the Constitution for the federal government to enter the marketplace since, when it does, it will favor itself over its competition. The Contracts Clause (the states cannot interfere with private contracts, like mortgages), the Takings Clause (no government can take away property, like real estate or shares of stock, without paying a fair market value for it and putting it to a public use), and the Due Process Clause (no government can take away a right or obligation, like collecting or paying a debt, or enforcing a contract, without a fair trial) together mandate a free market, regulated only to keep it fair and competitive.

It is clear that the Framers wrote a Constitution as a result of which contracts would be enforced, risk would be real, choices would be free and have consequences, and private property would be sacrosanct.

The $700 billion bailout of large banks that Congress recently enacted runs afoul of virtually all these constitutional principles. It directly benefits a few, not everyone. We already know that the favored banks that received cash from taxpayers have used it to retire their own debt. It is private welfare. It violates the principle of equal protection: Why help Bank of America and not Lehman Brothers? It permits federal ownership of assets or debt that puts the government at odds with others in the free market. It permits the government to tilt the playing field to favor its patrons (like J.P. Morgan Chase, in which it has invested taxpayer dollars) and to disfavor those who compete with its patrons (like the perfectly lawful hedge funds which will not have the taxpayers relieve their debts).

Perhaps the only public agreement that Jefferson and Hamilton had about the Constitution was that the federal Treasury would be raided and the free market would expire if the Treasury became a public trough. If it does, the voters will send to Congress those whom they expect will fleece the Treasury for them. That's why the Founders wrote such strict legislating and spending limitations into the Constitution.

Everyone in government takes an oath to uphold the Constitution. But few do so. Do the people we send to the federal government recognize any limits today on Congress's power to legislate? The answer is: Yes, their own perception of whatever they can get away with.

Mr. Napolitano, who served on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His latest book is "A Nation of Sheep" (Nelson, 2007).

from the Wall Street Journal, 2009-Mar-20, by Ian Bremmer and Sean West:

AIG and 'Political Risk'

After quietly tolerating $170 billion in bailout money for AIG, why have the public, Congress and the administration suddenly blown up about a tiny fraction of that amount that is being paid out in retention payments and bonuses? After all, the AIG bailout channels U.S. taxpayer dollars to foreign banks and even potentially covers hedge-fund profits.

The reason is one of political expediency: The bonuses represent greed in the face of dire circumstances, which resonates with Joe the TARP-funder. The public now has an Enron-like target on which to unload its collective frustration about the financial meltdown. While public outrage is understandable, pandering to it jeopardizes the administration's credentials in a sloppy attempt to score populist points. This raises the political risk for all investors in the U.S. (both domestic and foreign) significantly.

The financial-sector rescue necessitates unpopular actions that will only be politically worth it if the administration actually solves the crisis. Until recently, the Obama administration had taken pragmatic if slow actions that it deemed necessary to fend off disaster, as opposed to pursuing an ideological agenda in how it implements the bailout.

But this week, under pressure to show a strong hand and positive results, the administration latched onto the AIG bonus flap as an angle for currying populist favor. When it became clear that the bonuses were going to be big news, President Obama led the anti-AIG charge with instructions to "pursue every legal avenue" to get the money back. Never mind that the administration was responsible for the TARP provision that (sensibly, from a legal standpoint) exempted pre-existing legal agreements from the bill's limits on compensation. Mr. Obama now says he'd like to create a new "resolution authority" to deal with "contracts that may be inappropriate." Meanwhile, Congress seems poised to undo the bonuses through special taxes -- a move that in other circumstances would clearly be labeled retroactive and unfair.

It was not long ago that Mr. Obama assailed the Bush administration for its dangerous expansion of executive power during a complex crisis. The Obama administration's antics around the AIG bonuses suggest a similar effort to use political power to contort the law. But rather than doing so for reasons of national security, this administration is doing so to pander to an angry public. When the Obama administration and Congress flex this kind of muscle, they attach a new political-risk component to all contracts negotiated in the shadow of the bailout.

That risk may scare potential investors away from bailout recipients because they cannot trust our government's will in the face of public outrage. It destroys our moral high ground the next time Mr. Obama wants to criticize a foreign country for ignoring the rule of law by nationalizing private assets or repudiating international debt. It will certainly make Mr. Obama's task much more difficult when he tries to sell the public on his administration's ability to manage the rest of the bailout, and when he tries to sell private firms on the public-private partnership that will be needed to make the recovery work.

The administration could have let Congress have its week of grandstanding over bonuses, while issuing a public statement acknowledging the bonuses as deplorable, but not important enough to detract from the real work that lies ahead. The tragedy here is the extraordinary amount of time that is being wasted on this issue when the Treasury Department remains understaffed, a detailed toxic-asset plan remains perpetually forthcoming, and the economy continues to shed jobs.

It's predictable that the administration and Congress would rather abuse an easy target over something every voter can get mad about than actually confront the hard issues of managing the financial crisis, including progress on the "stress test" of banks and the restoration of normal credit operations, establishing genuine oversight of the use of bailout funds, and coordinating international efforts on global economic stimulus and changes to financial-industry regulations. That type of governing is far more troublesome, as it involves making difficult decisions on complex topics and communicating unpopular news to constituents.

This is a hallmark moment for the administration. Congressional anger over AIG's bonuses foreshadows the battle looming if and when the administration asks for more financial-sector rescue funds. The administration may rightly sense that failing to join hands with Congress and the public in outrage over the bonuses would complicate release of those funds. But Mr. Obama does not need to show solidarity by diminishing confidence in the rule of law. That bit of populism will cost the president far more in future credibility than he stands to gain in present popularity.

Mr. Bremmer is president of Eurasia Group, a global political-risk consulting firm, and co-author of "The Fat Tail: The Power of Political Knowledge for Strategic Investing" (Oxford, 2009). Mr. West is a Washington-based analyst with Eurasia Group.

from the Wall Street Journal, 2009-Mar-18:

Prisoners of W--

By now, President Obama's lather-rinse-repeat approach to the legal war on terror is familiar: He lambastes his predecessor, then makes cosmetic changes that leave the substance of Bush policy intact. But Mr. Obama's decision last week to renounce the term "enemy combatant" is almost a parody of this method, given that the "new standard" for detaining terrorists is identical to the old one.

Strunk & White counseled simplicity in prose, so whoever wrote the Justice Department's filing with the D.C. District Court learned his elements of style elsewhere. To avoid using enemy combatants, we instead get "individuals captured in connection with armed conflicts and counterterrorism operations," or "members of enemy forces," or "persons who [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks."

These gyrations are bizarre because the brief is actually a solid legal argument for detaining e---- c---------. Justice argues that the U.S. has the right to hold indefinitely, without legal charges, those who "substantially supported" al Qaeda or the Taliban, reserving the right to define what qualifies as "substantial" in each case. It also extends its writ to people who support terror networks away from the battlefield, such as financiers.

The concept of the unlawful enemy combatant is deeply rooted in international law and custom, including the Geneva Conventions. It refers to those who violate the laws of war by killing civilians or fighting out of uniform, and thus are not entitled to prisoner-of-war status. The Justice brief cites the Supreme Court's 2004 Hamdi decision, in which a plurality of Justices held that capture and detention is "so fundamental and accepted an incident to war" as to be an afterthought.

The one difference between the Bush and Obama detention standards concerns core executive powers. The Obama team argues that its authority flows from the Authorization for the Use of Military Force Act, which Congress passed after 9/11 and authorizes the President to use "all necessary and appropriate force" to prosecute "nations, organizations, or persons" associated with the attack. Here, again, there is less than meets the eye. Bush lawyers also cited this act of Congress, but in addition they asserted inherent war power under the Constitution.

Eric Holder's Justice Department does not assert Commander in Chief prerogatives, but it doesn't disavow them either. Justice knows it doesn't need the argument given Hamdi and that it appeases the anti-antiterror left not to echo every Bush claim. The risk is that Mr. Obama could one day face a more isolationist GOP Congress, run by a Tom DeLay or a Senator William Borah that is unwilling to endorse the President's national-security policies. Then Justice will not be able to cite its own precedents as the courts intrude on executive war powers.

We're delighted that Mr. Obama has come around on one of the most rancorous controversies of the last eight years. Even so, Mr. Obama's supporters must be suffering some kind of post-traumatic stress disorder, because on the range of Bush antiterror policies that Mr. Obama has largely preserved -- interrogation, surveillance, rendition, state secrets, now detention -- no one seems to be vilifying him with the same intensity. Or maybe the problem with President Bush's policies was that they were President Bush's policies.

from the Wall Street Journal, 2009-Mar-5:

Pre-empting Drug Innovation
So much for the 'pro-business' Court.

The Supreme Court ruled 6-3 yesterday that drug companies can be held liable for harm even when their products are improperly administered by a third party despite warning labels that were obvious and approved by federal regulators. The decision is a huge victory for plaintiffs lawyers, but it's a much bigger defeat for drug innovation and public health.

Wyeth v. Levine involved Diana Levine, a Vermont woman who lost an arm to gangrene after an antinausea medication produced by Wyeth Pharmaceuticals was improperly injected into an artery. Ms. Levine sued the clinic and won a settlement. But then she also sued Wyeth, arguing that the company should have put stronger warnings on the label of the drug, Phenergan, and a Vermont jury awarded her $6.7 million in damages. Wyeth appealed, arguing that the warning label had been approved by the federal Food and Drug Administration, which should pre-empt liability under state law.

A majority of the Court, in an opinion written by Justice John Paul Stevens, sided with Ms. Levine. But the ruling is difficult to square with the Riegel decision last term, where a 7-2 majority held that FDA approval shields medical devices from most lawsuits. Moreover, it's unclear that a stronger warning would have mattered.

The drug's label clearly stated that the "IV push" method employed to deliver the drug to Ms. Levine should be used as a last resort and that "INADVERTENT INTRA-ARTERIAL INJECTION CAN RESULT IN GANGRENE OF THE AFFECTED EXTREMITY." As Justice Samuel Alito explains in his dissent, "the physician assistant who treated [Ms. Levine] disregarded at least six separate warnings that are already on Phenergan's labeling, so [Ms. Levine] would be hard pressed to prove that a seventh would have made a difference."

But Justice Alito's larger point is that "drug labeling by jury verdict" undermines the workability of the federal drug-labeling regime. Juries are presented with tragic plaintiffs who were injured, not the unknown patients who are helped, by a product. Hence, they tend to focus on risks more than overall benefits. By contrast, federal regulators are tasked to take the long view and factor in the interests of all potential users of a drug. Just as importantly, "the FDA conveys its warning with one voice," writes Justice Alito, "rather than whipsawing the medical community with 50 (or more) potentially conflicting ones."

A consequence of this ruling is an almost-certain spike in product-liability suits aimed at drug companies. Merck's Vioxx litigation has already cost the company $4 billion, and Eli Lilly has paid out more than $1 billion to settle suits related to the antipsychotic drug Zyprexa. A legal standard that said the FDA, not a state tort jury, is responsible for regulating warning labels would have given both drug companies a stronger position in these lawsuits.

Yesterday's ruling will expose drug companies to a kind of double innovation jeopardy. They typically spend $1 billion on research and development to bring a drug to market, with an 11% success rate on average. But they endure that burden on the understanding that FDA approval will give them a period to sell that drug with patent protection and that FDA approval provides some protection from lawsuits. Now they will have to contemplate paying up front -- and paying later, even if the tragic mistake in applying the drug is someone else's. Wyeth is a dream come true for the plaintiffs bar.

from the Wall Street Journal, 2009-Feb-28, by Paul H. Rubin:

The Exclusionary Rule's Hidden Costs
Deterring crime should always be the priority.

Television shows and movies routinely show criminals being released because evidence was illegally obtained. But with a recent decision -- Herring v. United States, which allowed the use of evidence obtained from a search that was based on incorrect information -- the Supreme Court may be moving towards eliminating the "exclusionary rule," which says that courts cannot use illegally obtained evidence in criminal trials.

As it's interpreted today, the exclusionary rule can hinder the effectiveness of law enforcement. Since police know they cannot use certain types of evidence, their policing and detection methods are limited. The overall result is that the police are somewhat less successful in catching criminals. This in turn encourages criminals to increase their illegal activity.

In the Herring decision, Chief Justice John G. Roberts viewed the benefits of the law as deterring police misconduct, and the costs as "letting guilty and possibly dangerous defendants go free." However, there are other deterrence issues involved. Because the police are less effective when there is an exclusionary rule, there may actually be less deterrence of crime overall, and the overall level of crime may increase. In other words, we are trading deterrence of police misconduct with deterrence of crime.

How did we get here? When Mapp v. Ohio (the Supreme Court decision applying the exclusionary rule to the states) was adopted in 1961, exactly half of the states (24) already had an exclusionary rule in place, and half did not. This set up an ideal situation for a statistical experiment to determine what the effects of the rule had been on crime rates. In a 2003 paper published in the Journal of Law and Economics, Raymond Atkins and I looked at just this issue. We compared crime rates in states that had adopted their own exclusionary rule with states that had the rule forced on them by the Supreme Court. We statistically controlled for other factors, such as the demographic characteristics of the population.

The results were striking. In our basic model, we found significant increases in crime in jurisdictions forced by the Supreme Court's ruling to exclude evidence. Those increases were 3.9% for larceny, 4.4% for auto theft, 6.3% for burglary, 7.7% for robbery, and 18% for assault. For murder, the increase was small and statistically insignificant.

To put these numbers in perspective, for the entire U.S. in 2007 (the most recent year for which FBI data is available), these percentage increases would translate into 246,000 additional cases of larceny, 46,000 more auto thefts, 129,000 additional burglaries, 32,000 more robberies, and 130,000 more aggravated assaults.

Society might decide that these increases in crime are worth the benefit of deterring police misconduct. But we should be aware that there are significant costs. An alternative might be deterrence of police misconduct through a system of civil damages paid by the police department for improper searches. This would give police departments incentives to be cautious in performing searches, but might be less costly for the rest of us in terms of its effect on crime rates.

Mr. Rubin is professor of economics and law at Emory University.

from the Wall Street Journal, 2009-Mar-16, by Terry L. Anderson:

Native Americans Need the Rule of Law

Ken Salazar, the new secretary of the Interior, faces the same tough questions as his predecessors: Drill more or drill less? Graze more or graze less? Mine more or mine less? More snowmobiling in national parks, or less?

But for an administration committed to integrating minorities into the mainstream of the American economy, Mr. Salazar will have to do more than manage natural resources. His department also oversees the poorest of all minorities: American Indians.

President Barack Obama courted the Indian vote. During the campaign, he visited Montana's Crow Reservation last May and was adopted into the tribe under the Crow name "One Who Helps People Throughout the Land." There he said, "Few have been ignored by Washington for as long as Native Americans," and vowed to improve their economic opportunities, health care and education.

Two vital steps in this direction are to strengthen property rights and the rule of law on reservations. Virtually every study of international development shows that both of these are crucial to prosperity. Indian country is no different. The effect of insecure property rights is evident on a drive through any western reservation. When you see 160 acres overgrazed and a house unfit for occupancy, you can be sure the title to the land is held by the federal government bureaucracy. In contrast, when you see irrigated land in cultivation with farm implements, a barn and well-kept house, you can be sure the land is held in fee simple, whether by an Indian or non-Indian.

Land tenure in Indian country is complicated thanks to laws, dating back to the 19th century, which put millions of acres of tribal and individual Indian land under the trusteeship of the Interior department's Bureau of Indian Affairs. These lands cannot be sold, used as collateral, easily inherited, or managed productively. Instead of giving Indians more federal welfare, Mr. Obama has the opportunity to increase their autonomy. It is, after all, their land. Let them manage it, borrow against it, and make it productive.

Some tribes have wrested control of the land from the bureaucracy and are demonstrating they can do better. On the Flathead Reservation in Montana, the tribally managed timber program netted $16 million between 1998 and 2005 -- compared to $2.5 million for timber sales managed by the U.S. Forest Service. Also in Montana, the Crow tribe has negotiated a deal for a plant to convert coal to liquid fuels (such as jet fuel and diesel) that could generate revenues of $1 billion. That's $80,000 per tribal member -- not bad for a reservation where per capita income is $7,400.

Mr. Obama can also strengthen the rule of law in Indian country. Some reservations were placed under state jurisdiction in 1953: They have a stronger legal system than those with tribal jurisdiction, and they benefit economically. My own research, published in the Journal of Law and Economics, shows that for tribes with state jurisdiction, per capita income grew 20% faster between 1969 and 1999 than for their counterparts under tribal court jurisdiction. All Indians are less likely than whites to get home loans, but the likelihood of a loan rejection falls by 50% on reservations under state jurisdiction.

A stable judicial system is crucial for investment, and tribal courts have not provided this. Mr. Obama should set strict legal standards for tribal courts to meet, and if they don't, they should have their legal jurisdiction turned over to state courts. This will sacrifice some tribal sovereignty, but it will help empower Indian economic well-being.

Mr. Obama's rallying cry was "change," and that is exactly what he needs to bring about in Indian policy. The first Americans deserve to be freed from the bureaucratic shackles that have made them victims, and allowed to establish property rights and legal systems that can make them victors.

Mr. Anderson is executive director of the Political Economy Research Center in Bozeman, Mont., and co-editor of "Self-Determination: The Other Path for Native Americans" (Stanford University Press, 2006).

from the Associated Press via Newsweek online, 2009-Feb-19, by Larry Margasak:

Democrats hit ethics pothole
Flush with power, Democrats on record pace for ethical missteps

The Obama administration and the new Congress are rapidly giving Republicans the same "culture of corruption" issue that Democrats used so effectively against the GOP before coming to power.

Democrats' ethical issues are popping up at a dizzying pace, after less than two months of party control of both the White House and Congress. Freshman Sen. Roland Burris, D-Ill. is only the latest embarrassment.

The only consolation is timing: It's nearly two years until the next congressional election, giving Democrats a chance to stop the bleeding in time.

Republicans know all about bad timing on ethics issues. Their scandals developed over a longer period. But they were hurt most by a scandal that broke shortly before the 2006 election.

It was revealed that then-Rep. Mark Foley, R-Fla., wrote suggestive notes to former teenage male pages, and several Republican lawmakers and officials failed to act when they learned of the situation.

The Democrats stepped up their campaign theme of a "culture of corruption," and it resonated all the way to the voting precincts. Democrats then regained control of the House.

Senate Democrats were blindsided by Burris, because they believed what he told them, that he was clean. Burris now acknowledges that he tried to raise money for Illinois Gov. Rod Blagojevich, who authorities say sought to sell President Barack Obama's former Senate seat.

"The story seems to be changing day by day," Senate Majority Leader Harry Reid, D-Nev., said Wednesday.

The political mess for the Democratic Party, however, isn't Burris' conduct alone; it's the pattern that has developed so quickly over the past few months.

— The chairman of the House Ways and Means Committee, Rep. Charles Rangel, D-N.Y., is the subject of a House ethics investigation. It's partly focused on his fundraising practices for a college center in his name, his ownership financing of a resort property in the Dominican Republic and his financial disclosure reports.

— Federal agents raided two Pennsylvania defense contractors that were given millions of dollars in federal funding by Rep. John Murtha, D-Pa., chairman of the House Appropriations defense subcommittee.

— Blagojevich was arrested Dec. 9 on federal charges, including allegations that he schemed to sell the Senate seat to the highest bidder.

— Tom Daschle, the former Senate majority leader from South Dakota, abandoned his bid to become health and human services secretary and the administration's point man on reforming health care; and Nancy Killefer stepped down from a newly created position charged with eliminating inefficient government programs.

Both Daschle and Killefer had tax problems, and Daschle also faced potential conflicts of interest related to working with health care interests.

— Treasury Secretary Timothy Geithner was confirmed to his post after revealing he had tax troubles.

— Obama's initial choice for commerce secretary, Bill Richardson, stepped aside due to a grand jury investigation into a state contract awarded to his political donors.

— While the Senate voted overwhelmingly to confirm William Lynn as deputy defense secretary, Obama had to waive his ethics regulations to place the former defense lobbyist in charge of day-to-day operations at the Pentagon.

The No. 2 Senate Democrat, Richard Durbin of Illinois, expressed anger about the Burris case Wednesday while he was on an official visit to Greece.

"I do believe that the public statements made by Mr. Burris to this point have raised questions ... as to the nature of his relationship with the former governor and the circumstances surrounding his appointment," Durbin said.

Reid said in Nevada, "Now there's some question as to whether or not he told the truth."

Where to go next? Reid had no answer.

"What I think we have to do is just wait and see," the Senate leader said.

Senate Democrats now may be trapped in their own ethics system. Disciplinary action against a senator usually requires a long investigation by the Senate's ethics committee.

While a preliminary inquiry on Burris is under way, that's only the first step. And, with ongoing criminal investigations in Illinois, the committee probably would have to postpone any action — as it usually does — to avoid interference.

EDITOR'S NOTE — Larry Margasak has covered Congress, including major ethics investigations, since 1983.

from the Wall Street Journal, 2009-Mar-20:

Congress's Own Liechtenstein

On the same day the House whooped through a 90% surtax on some bonuses, Bloomberg News reported that Democratic Rep. Pete Stark, a House eminento from California, may have been improperly claiming residency in Maryland to get a tax break. As you might guess, Maryland's tax bite isn't as deep as wonderful California's. This follows on news reports last week that Democratic New York Congressman Eliot Engel has been told by Maryland authorities he too may not claim his suburban Maryland home as his primary residence for tax purposes. The AP noted, "Engel isn't the only politician who's been found to be improperly receiving the credit. Another Congressman, some U.S. Senators and several Maryland legislators have also been tripped up by the requirements."

Oh my. If New York Attorney General Andrew Cuomo and Massachusetts Congressman Barney Frank are going to try to make public the names of bonus recipients to help mobs demonstrate in front of individuals' homes, perhaps Maryland's tax authorities could do the same for out-of-state politicians who've turned the state into their personal Liechtenstein. No doubt millions of average Joes living in such tax hells as New York and California would love to work on the taxpayers' dime in Washington and live in a low-tax jurisdiction nearby.

from the Telegraph of London, 2009-Feb-22, by Andrew Porter:

European MPs earning £1 million profits in a term, report finds

Members of the European Parliament are earning up to £1 million in profit in just one five-year term in office through expenses and allowances, a leaked report has revealed.

The report sparked calls for a police investigation into the systematic abuse of taxpayers' money.

The internal report into the system of allowances - conducted by Robert Galvin, a European Union internal audit official - was kept secret when it was carried out last year.

But a leaked copy of the 92-page document details the full extent of "corruption, dodgy dealing and poor financial controls" in the European Parliament, according to the Taxpayers' Alliance. It revealed that some MEPs claimed money for assistants that were neither accredited nor registered with the parliament.

Matthew Elliott, the chief executive of the Taxpayers' Alliance, said: "Having acquired the report, we felt it was right to publish it so taxpayers across the EU could see the widespread evidence of corruption, dodgy dealing and poor financial controls in the European Parliament.

"It should never have been kept secret, and there must now be a proper investigation by the police.

"Taxpayers deserve to know how their money is being spent, and if anyone is stealing from them. The EU Parliament must publish the full details of all MEPs' expenses and allowances, and name the people this report found to be ripping taxpayers off."

Mr Elliott said each MEP could save more than £1 million from their expenses and pension benefits over a five-year term at the European Parliament.

Over five years, each MEP can claim this includes a subsistence allowance of 117,000 Euros, staff allowance of 489,840 Euros, office expenses of 243,120 Euros, travel expenses of 60,000 Euros and an accrued pension of £350,000.

This does not include the MEP salary of £63,291, which is set to increase to £73,584 after the European Parliament elections in June 2009.

There was also widespread failure to comply with tax, company and social security laws. Nearly 80 per cent of transactions that should have been subject to VAT displayed no evidence of either VAT payment or exemption.

In his report, Mr Galvin found that overpayments of parliamentary allowances were common.

The investigation discovered a culture of huge "bonuses" being paid to staff members or handling firms at the end of the financial year, ranging from three times to 19 and a half times the employees' monthly salaries.

It was also possible to pay large "layoff" payments to the staff of MEPs without any justification being provided.

Chris Davies, the Liberal Democrat MEP who last year exposed some of the report's findings, last night said the "overwhelming majority" of MEPs used their staff budget honestly to pay their staff.

He said: "It is not true that expenses are being abused by everyone, but voters should ask questions of their representatives.

"Honesty doesn't pay in this system and the temptations are great. No-one knows who is cheating and who is not, and it is a disgrace that the Parliament has voted to keep auditors' reports secret."

from the MinnPost.com, 2009-Feb-19, by Cynthia Dizikes:

Stimulus plan ties the hands of reluctant governors

WASHINGTON, D.C. — Hidden in President Obama's massive economic stimulus plan is an unprecedented — but little noticed — provision aimed at keeping Republican governors like Minnesota's Tim Pawlenty from standing in the way of the $787 billion spending package.

The measure in the legislation, signed into law by Obama on Tuesday, could represent a significant federal intrusion into state government, according to political scholars, and has prompted worries by states' rights advocates.

Occupying only three paragraphs in legislation that spans more than 1,000 pages, the new law clears the way for an end-run around reluctant governors by requiring governors to accept the federal stimulus funds within 45 days. If the money is not accepted within that time frame, it is passed to the state legislature for certification and release to the state.

"What is unusual about this is that Congress has created a failsafe if the governor decides not to spend the money and the legislature supports it," said Larry Jacobs, director of the Center for the Study of Politics and Governance at the University of Minnesota.

David Quam, federal relations director of the National Governors Association, said that the provision could potentially be a "big problem." Creating a legal mechanism to get around governors who oppose the spending "flies in the face of the state constitution and the way that money is supposed to be distributed," he said.

Pietro Nivola, a senior fellow at Brookings Institution, a liberal-leaning research organization, described the law as "basically nationalizing state authority."

"Something like this is definitely a massive encroachment into state rights," Nivola said. "It is one thing to say you don't get the money if you don't certify it within 45 days, but it is quite another to sort of force the governor's hand."

Governors targeted

Jacobs said that he had never seen a similar situation that dealt with this amount of money and "this kind of audacity of the federal government to say, 'We are not entirely trusting you [the governor]. If you are going to sit on this money, given the crisis we are in, then we are basically going to give you a fiscal time out.'

"It is very striking that the package looks to be targeted in very specific ways to handcuff people like Governor Pawlenty," Jacobs added.

Although a handful of Republican governors came out in open, and even active, support of the recovery package that sailed through the House and Senate last week, not all of the nation's 22 GOP governors have been so jubilant.

Pawlenty, along with South Carolina's Mark Sanford, Louisiana's Bobby Jindal, Mississippi's Haley Barbour and Alaska's Sarah Palin have all expressed deep concerns with the spending in the stimulus. Some have even threatened inaction.

The possibility of a block at the state level, ultimately prompted Congress to insert the 45-day provision, according to Rep. James Clyburn, D-S.C.

Clyburn publicly thanked the Congressional Black Caucus last week for the "efforts they put forth in making sure we got language in this bill that would allow communities we represent to claim the monies being funded where there may be a recalcitrant governor whose political philosophies may render him or her unable or unwilling to accept this money on behalf of our communities."

Minnesota state Sen. Tarryl L. Clark, DFL-St. Cloud, called the measure "an important thing."

"There was some concern that he [Pawlenty] might drag his heels," said Clark, assistant majority leader. "We are just trying to ensure that our state maximizes our opportunities in case the governor wouldn't act or chose to act in a limited way."

For his part, Pawlenty has indicated that he will accept the money despite his misgivings — even banking on using some of it to help balance the budget.

"We understand that when someone else is sending you money they are going to send along some requirements," said Brian McClung, Pawlenty's director of communications.

Hamline University law professor David Schultz pointed to federal programs that allow cities to apply directly for federal money as an instance where the state government is bypassed altogether.

"The money goes directly to cities," Schultz said. "So it is not unusual to bypass governors, it happens all the time. It is just the way" it's being done that is unusual.

According to Jacobs, the bill's language now ensures that the DFL-controlled Legislature has some significant "cards to play in negotiations with the governor."

"It's a very clever strategy," said Jacobs.

Veto-proof strategy

If a governor does not accept the funding then it goes to the legislature, which can pass it by concurrent resolution, a legislative measure that is usually used for non-controversial, ceremonial or commemorative items.

Concurrent resolutions must be passed by both the state Senate and House, but do not have to be acted upon by the governor and are therefore veto-proof.

While federal money that comes with "strings attached" is not altogether unique or unexpected, this measure stands apart because it seeks to go beyond simply dictating how a state should use its federal handout, according to Jacobs.

At the same time, proponents of the provision argue that the current economic situation is extraordinary enough that exceptions to the norm are required.

"The legislation is unique and the times we face are unique," said Kristie Greco, a spokesperson for Clyburn. "No constituents should be denied federal funding, especially assistance under this package, because of a governor's political aspirations or political ideologies…you have to put it in that context."

As of Wednesday evening, confusion and uncertainty abounded over how the provision would be interpreted and whether any governors would turn down the money, setting the stage for the provision to take effect.

Some political experts said that the provision could potentially end up in the courts. Others said that would be highly unlikely and legal challenges to the provisions would probably fail anyway.

Pervasive federal government

Either way, most agreed that the stimulus package, in its entirety, and the 45-day measure, specifically, served to underline the country's move toward a more pervasive federal government.

"I don't think that this is going to generate lawsuits and I doubt that it would become a constitutional challenge to the authority of the state given the emergency and the crisis conditions," said Nivola. "But the fact that they were able to tuck this into the package, seemingly without a lot of debate, suggests that the federal intervention into state and local areas that has been expanding over time is continuing to do so."

When looking at domestic spending, the federal and state contributions have been fairly equal over the years, according to Paul E. Peterson, a professor of government at Harvard University and an expert on federalism.

With the stimulus, the federal contributions on domestic issues from education to transportation to health care now stand to go up significantly and aren't likely to go away anytime soon, said Peterson.

"It [the 45-day provision] does show an increasing willingness of the federal government to treat the states as its agents instead of sovereign entities," said Peterson. "It is a leading indicator of a broader phenomenon that is at work here."

Then again, Peterson added, the states have not done a very good job in positioning themselves to ward off such intrusions.

In a way, "the states have invited this," said Peterson. "They haven't kept their fiscal houses in order… they are the General Motors of the American government."

Cynthia Dizikes covers Minnesota's congressional delegation and reports on issues and developments in Washington, D.C. She can be reached at cdizikes[at]minnpost[dot]com.

from Fox News, 2009-Feb-16, by John R. Lott, Jr.:

from the Wall Street Journal, 2009-Jan-30:

Dodd of Indignation
Wall Street bonuses and sweetheart mortgages: Compare and discuss.

Senate Banking Chairman Chris Dodd has been in typically indignant form this week, opining on the financial crisis. Before his Tuesday hearing on Bernard Madoff, he demanded that regulators get to the bottom of any crime: "American investors deserve an explanation and the responsible parties must be held accountable!" And yesterday the Connecticut Senator denounced Wall Street bonuses and said, "I am urging -- in fact, not urging, demanding -- that the Treasury Department figures out some way to get the money back."

We refer to his promise to release mortgage documents for the two properties that he and his wife refinanced with Countrywide Financial in 2003. In June a former Countrywide loan officer charged that Mr. Dodd received preferential rates and had fees waived on those loans as part of a VIP program the company had for "friends" of the company's then-CEO Angelo Mozilo. Mr. Dodd first issued a denial and then, days later, acknowledged that he was a "VIP" with Countrywide but said he thought it was "more of a courtesy." In late June he pledged to make all pertinent documents public "at some point." We're still waiting.

Dodd Bedfellows Dodd and Countrywide 10/10/2008 – The Senator should take the witness stand. Mortgage VIPs 06/25/2008 – Sweetheart deals are just a phone call away. Angelo's Angel 06/19/2008 – The senate bailout for Countrywide needs more scrutiny. Congress and the Countrywide Scandal 06/18/2008 – Some senators want a bailout for big political donors. What a surprise. Beltwaywide Financial 06/16/2008 – The new ARMs: Angelo-rated mortgages for senators.

Increasing accountability is critical to rebuilding public trust in the financial system, as the Senator keeps telling us. Countrywide was one of the most irresponsible lenders in the subprime frenzy but it did not act alone. One reason it could pump out so much bad paper is because Fannie Mae and Freddie Mac were around to buy it and then resell it with a taxpayer guarantee. Messrs. Dodd and Mozilo were two of Fan and Fred's biggest supporters, with Mr. Dodd playing a role in pushing the companies to take on "affordable housing" loans from outfits like Countrywide.

Perhaps Connecticut's longest serving Senator was bamboozled by Mr. Mozilo and used bad judgment in backing the reckless lender. But loan officer Robert Feinberg, who oversaw Countrywide's VIP program, says Mr. Dodd knew he was getting favors from Mr. Mozilo. Mr. Feinberg says his job was to remind beneficiaries at every step of the process that they were getting a special deal because they were "Friends of Angelo." If true, it would mean that the Senator had a clear conflict of interest as a legislator promoting the business of a company doing him personal favors. Recall the Ted Stevens precedent.

The way to clear this up is to see all the documents and get Mr. Dodd to explain what happened, preferably under oath. But Mr. Dodd has been stonewalling. In July he said he would release the documents after President Bush signed the first housing bailout bill. Nothing. Then in October he said he wanted to wait until the Senate Ethics Committee completed its investigation.

That could take a while. On July 28 Ethics Chairman Barbara Boxer (D., Calif.) and Vice Chairman John Cornyn (R. Texas) issued a press release that explained "it has been the long-standing policy of the committee to defer investigation into matters where there is an active and ongoing criminal investigation and proceeding so as not to interfere in that process."

Earlier this month, Mr. Dodd's office confirmed that the law firm Perkins Coie has provided "ethics advice" to him, and we can't help but wonder what that entailed. The delay at the Ethics Committee in no way impedes Mr. Dodd from honoring his disclosure pledge. It's in his political interest to do so, assuming he has nothing to hide. A recent Quinnipiac poll showed his approval rating down to an all-time low of 47%. Rare is the politician who could clear his name overnight and chooses not to.

from the Wall Street Journal, 2009-Jan-15, by Michael Stokes Paulsen:

The Minnesota Recount Was Unconstitutional
There's still plenty of time for the state to get it right.

You would think people would learn. The recount in the contest between Norm Coleman and Al Franken for a seat in the U.S. Senate isn't just embarrassing. It is unconstitutional.

This is Florida 2000 all over again, but with colder weather. Like that fiasco, Minnesota's muck of a process violates the Equal Protection Clause of the U.S. Constitution. Indeed, the controlling Supreme Court decision is none other than Bush v. Gore.

Remember Florida? Local officials conducting recounts could not decide what counted as a legal vote. Hanging chads? Dimpled chads? Should "undervotes" count (where a machine failed to read an incompletely-punched card)? What about "overvotes" (where voters punched more than one hole)? Different counties used different standards; different precincts within counties were inconsistent.

The Florida Supreme Court intervened and made things worse, ordering a statewide recount of some types of rejected ballots but not others. It specified no standards for what should count as a valid vote, leaving the judgment to each county. And it ordered partial recounts already conducted in some counties (but not others) included in the final tabulation. The result was chaos.

By a vote of 7-2, Bush v. Gore (2000) ruled that Florida's recount violated the principle that all votes must be treated uniformly. Applying precedents dating to the 1960s, the Court found that the Equal Protection Clause meant that ballots must be treated so as to give every vote equal weight. A state may not, by "arbitrary and disparate treatment, value one person's vote over that of another." Florida's lack of standards produced "unequal evaluation of ballots in several respects." The state's supreme court "ratified this uneven treatment" and created more of its own, and was unconstitutional.

Bush v. Gore is rightly regarded as controversial -- but not because of its holding regarding the Equal Protection Clause, which commanded broad agreement among the justices. The controversy arose because of the remedy the Court chose for Florida's violation, which was to end the recount entirely. The majority thought that time was up under Florida law requiring that its results be submitted in time to be included in the Electoral College count. That aspect of Bush v. Gore commanded only five votes. Two justices thought Florida should get more time and another chance.

The problem with the remedy was that it arguably violated the same principle that led the Court to invalidate the recount: the need to treat all votes equally. It had the practical effect of awarding the election to Bush (though subsequent media counts confirmed that Bush won anyway, under any uniform standard). This has led to enduring partisan criticism of the case, some fair and some unfair.

But no matter: Bush v. Gore is the law of the land. On the question of how the Equal Protection Clause applies to state recounts, the ruling, which reflected a 7-2 majority, controls.

Minnesota is Bush v. Gore reloaded. The details differ, but not in terms of arbitrariness, lack of uniform standards, inconsistency in how local recounts were conducted and counted, and strange state court decisions.

Consider the inconsistencies: One county "found" 100 new votes for Mr. Franken, due to an asserted clerical error. Decision? Add them. Ramsey County (St. Paul) ended up with 177 more votes than were recorded election day. Decision? Count them. Hennepin County (Minneapolis, where I voted -- once, to my knowledge) came up with 133 fewer votes than were recorded by the machines. Decision? Go with the machines' tally. All told, the recount in 25 precincts ended up producing more votes than voters who signed in that day.

Then there's Minnesota's (first, so far) state Supreme Court decision, Coleman v. Ritchie, decided by a vote of 3-2 on Dec. 18. (Two justices recused themselves because they were members of the state canvassing board.) While not as bad as Florida's interventions, the Minnesota Supreme Court ordered local boards to count some previously excluded absentee ballots but not others. Astonishingly, the court left the decision as to which votes to count to the two competing campaigns and forbade local election officials to correct errors on their own.

If Messrs. Franken and Coleman agreed, an absentee ballot could be counted. Either campaign could veto a vote. Dean Barkley of the Independence Party, who ran third, was not included in this process.

Thus, citizens' right to vote -- the right to vote! -- was made subject to political parties' gaming strategies. Insiders agree that Mr. Franken's team played a far more savvy game than Mr. Coleman's. The margin of Mr. Franken's current lead is partly the product of a successful what's-mine-is-mine-what's-yours-is-vetoed strategy, and of the Coleman team's failure to counter it.

The process is not over yet, since the state court decision in effect kicked the can down the road. The candidates can revisit these issues by contesting the legal validity of the election under state law -- which Mr. Coleman's team did last week.

But as matters stand now, the Minnesota recount is a legal train wreck. The result, a narrow Franken lead, is plainly invalid. Just as in Bush v. Gore, the recount has involved "unequal evaluation of ballots in several respect" and failed to provide "minimal procedural safeguards" of equal treatment of all ballots. Legally, it does not matter which candidate benefited from all these differences in treatment. (Mr. Franken did.) The different treatment makes the results not only unreliable (and suspicious), but unconstitutional.

What is the remedy? Unlike Bush v. Gore, there is no looming national deadline. Minnesota can take its time and do things right.

This means two things: First, the process must conform to Minnesota election law. Second, it must conform to Bush v. Gore. Whatever standards Minnesota uses must be applied uniformly, consistently, and under clear standards not admitting of local variation. Discrepancies between machine counts and hand recounts, and between numbers of recorded votes and signed-in voters, however resolved, must be resolved the same way throughout the state.

The standards for evaluating rejected absentee ballots likewise must be uniform, with decisions made according to legal standards, not by partisan campaigns. If the Minnesota Supreme Court fails to assure these things, the matter could go right up to the U.S. Supreme Court.

And what if there is no reliable way to determine in a recount who won, consistent with Bush v. Gore's requirements?

The Constitution's answer is a do-over. The 17th Amendment provides: "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

In a sense, a vacancy has already "happened." The U.S. Senate convened on Jan. 6 with only one senator from Minnesota. Still, the seat is perhaps not "vacant," just unfilled. But if the contest proceeding does not produce a clear winner that passes constitutional muster, a special election -- and a temporary appointment by Gov. Tim Pawlenty -- may be the only answer.

For now, the only thing certain is that the present "certified" result -- which is that Mr. Franken won by 225 votes out of more than 2.9 million cast -- is an obvious, embarrassing violation of the Constitution.

Mr. Paulsen is professor of law at the University of St. Thomas in Minneapolis, Minn. He is formerly associate dean of the University of Minnesota Law School.

from the Wall Street Journal, 2008-Dec-31, by Trent England:

The Minnesota Recount Folly: We've Been Down That Road
How the Democrats 'won' the Washington governor's mansion in 2004.

Olympia, Wash.

Sorry Minnesota, but the sequel is never as good as the original.

For those who watched the Washington State governor's race recounts in 2004, the ongoing recount drama in Minnesota is just another rehash of the same script -- albeit for a U.S. Senate seat that might put Democrats one vote away from a filibuster-proof majority.

Four years ago in Washington, Democratic Party candidate Christine Gregoire lost the first count, lost the recount, and then won a second, highly dubious recount by 133 votes. In Minnesota, where Sen. Norm Coleman is defending his seat against comedian-turned-candidate Al Franken, the first count showed Mr. Coleman up 725 votes. Today, thanks to another dubious recount, Mr. Franken is apparently in the lead.

Razor-thin margins like these put election systems to the test. As the old proverb goes, they are a crisis and an opportunity. Yet the crises keep coming and the opportunities continue to be squandered. It's time to learn the lessons of the recount wars and address the systemic flaws in our election processes. Indeed, the price of a continued decline in voter confidence is too troubling for most Americans to comprehend.

In Washington's 2004 gubernatorial election, at least 1,392 felons illegally voted, 252 provisional ballots were wrongly counted, and 19 votes were cast from beyond the grave, according to Chelan County Superior Court Judge John Bridges's opinion in a case brought by Dino Rossi, Ms. Gregoire's Republican opponent.

Election workers in King County (where Seattle is located) "enhanced" 55,177 ballots to make it easier for tabulating machines to read them -- even though the county had failed to establish written procedures as required by state law. In some cases, individual election workers modified voted ballots using black felt markers and white-out tape while observers were kept at a distance that prevented meaningful observation. Nine separate times, King County "discovered" and counted unsecured ballots.

Nevertheless, Ms. Gregoire lost to Mr. Rossi by 261 votes.

An automatic recount reduced Mr. Rossi's lead to just 42 votes. The Gregoire campaign demanded a state-wide hand recount, a time-consuming and expensive process that state law says the challenger must pay for (if the result changes, the challenger is reimbursed). Big labor unions joined with far-left groups like MoveOn.org to put up the money for Ms. Gregoire's third-time's-the-charm ballot shuffle.

During the recount process, five counties found new, uncounted, unsecured ballots and added them into their totals. King County officials admitted publicly that ballot reconciliation reports were falsified in an attempt to conceal variations between the number of votes counted and the number of voters who voted (two elections workers were disciplined as a result).

By the end, 3,539 votes more than the number of voters who voted were tabulated. Four other swing counties provided an additional 4,880 mystery ballots. Ms. Gregoire was the victor by a margin of 133 votes.

That margin -- 133 votes -- happens to be the same number of ballots that Minneapolis election officials are currently missing. The initial vote tally in one Democrat-leaning precinct counted 133 more ballots than officials have been able to find for the Senate recounts. The Minnesota canvassing board decided on Dec. 12 to allow Minneapolis simply to ignore the recount and go with the original number. This provided a 46-vote boost for Mr. Franken, about the same as his current projected lead. The board also "requested" that counties reconsider rejected absentee ballots, a new and novel part of the recount procedure that is also expected to favor Mr. Franken.

Something is wrong when a victorious candidate owes more thanks to vote counters than to voters. Such was the case in Washington in 2004, and Minnesota is poised to follow in its footsteps in 2008.

It need not be this way. After 2004, the Evergreen Freedom Foundation produced a 42-page report offering a dozen solutions. While a few were implemented, most were simply ignored by officials content to cross their fingers and hope the next close election is in someone else's jurisdiction.

Some reforms are simply educational and cultural; others are fundamental and essential. Election officials need to understand current federal and state laws and regulations governing the entire election process, including recounts. Those responsible for elections must also inculcate a culture of compliance among election staff, including temporary staff hired at election time.

From the moment they are printed, ballots should be isolated and guarded and their chain of custody recorded. Officials with rule-making authority are responsible for establishing processes that clarify how ballots are to be handled, stored, counted, and, if necessary, recounted.

Most important to maintaining and increasing public faith in elections is improving openness, especially leveraging Internet technology to make anyone a potential election observer. The Minneapolis Star Tribune's project to put all 6,700 contested ballots in the Senate race on the Web, so people can compare their own judgments to those of the canvassing board, is but one example. Election officials who have nothing to hide should be putting as much as possible online as quickly as possible.

Citizens and the media might also take a closer look at some of the individuals and organizations involved in monkeying with and even overturning elections. Both Mr. Franken and Ms. Gregoire were endorsed by the Association of Community Organizations for Reform Now -- Acorn -- a group under investigation in several states for suspected voter registration chicanery.

The man overseeing the Senate recount, Minnesota Secretary of State Mark Ritchie, was also endorsed by Acorn, and his election campaign in 2006 was funded in part by something called "The Secretary of State Project." This latter group, founded by MoveOn.org's former grass-roots director, exists solely to install far-left candidates as secretaries of state in swing states.

Close elections will always stir controversy. They will often require recounts to validate the results. Yet the Washington and Minnesota recounts offer cautionary tales. The democratic process is too important to be disregarded until a virtual tie forces us to pay attention. Regardless of which candidates win our elections, the voters -- not the vote counters -- should win every time.

Mr. England is director of the Citizenship and Governance Center at the Evergreen Freedom Foundation.

from the Wall Street Journal, 2009-Jan-4:

Funny Business in Minnesota
In which every dubious ruling seems to help Al Franken.

Strange things keep happening in Minnesota, where the disputed recount in the Senate race between Norm Coleman and Al Franken may be nearing a dubious outcome. Thanks to the machinations of Democratic Secretary of State Mark Ritchie and a meek state Canvassing Board, Mr. Franken may emerge as an illegitimate victor.

Mr. Franken started the recount 215 votes behind Senator Coleman, but he now claims a 225-vote lead and suddenly the man who was insisting on "counting every vote" wants to shut the process down. He's getting help from Mr. Ritchie and his four fellow Canvassing Board members, who have delivered inconsistent rulings and are ignoring glaring problems with the tallies.

Under Minnesota law, election officials are required to make a duplicate ballot if the original is damaged during Election Night counting. Officials are supposed to mark these as "duplicate" and segregate the original ballots. But it appears some officials may have failed to mark ballots as duplicates, which are now being counted in addition to the originals. This helps explain why more than 25 precincts now have more ballots than voters who signed in to vote. By some estimates this double counting has yielded Mr. Franken an additional 80 to 100 votes.

This disenfranchises Minnesotans whose vote counted only once. And one Canvassing Board member, State Supreme Court Justice G. Barry Anderson, has acknowledged that "very likely there was a double counting." Yet the board insists that it lacks the authority to question local officials and it is merely adding the inflated numbers to the totals.

In other cases, the board has been flagrantly inconsistent. Last month, Mr. Franken's campaign charged that one Hennepin County (Minneapolis) precinct had "lost" 133 votes, since the hand recount showed fewer ballots than machine votes recorded on Election Night. Though there is no proof to this missing vote charge -- officials may have accidentally run the ballots through the machine twice on Election Night -- the Canvassing Board chose to go with the Election Night total, rather than the actual number of ballots in the recount. That decision gave Mr. Franken a gain of 46 votes.

Meanwhile, a Ramsey County precinct ended up with 177 more ballots than there were recorded votes on Election Night. In that case, the board decided to go with the extra ballots, rather than the Election Night total, even though the county is now showing more ballots than voters in the precinct. This gave Mr. Franken a net gain of 37 votes, which means he's benefited both ways from the board's inconsistency.

And then there are the absentee ballots. The Franken campaign initially howled that some absentee votes had been erroneously rejected by local officials. Counties were supposed to review their absentees and create a list of those they believed were mistakenly rejected. Many Franken-leaning counties did so, submitting 1,350 ballots to include in the results. But many Coleman-leaning counties have yet to complete a re-examination. Despite this lack of uniformity, and though the state Supreme Court has yet to rule on a Coleman request to standardize this absentee review, Mr. Ritchie's office nonetheless plowed through the incomplete pile of 1,350 absentees this weekend, padding Mr. Franken's edge by a further 176 votes.

Both campaigns have also suggested that Mr. Ritchie's office made mistakes in tabulating votes that had been challenged by either of the campaigns. And the Canvassing Board appears to have applied inconsistent standards in how it decided some of these challenged votes -- in ways that, again on net, have favored Mr. Franken.

The question is how the board can certify a fair and accurate election result given these multiple recount problems. Yet that is precisely what the five members seem prepared to do when they meet today. Some members seem to have concluded that because one of the candidates will challenge the result in any event, why not get on with it and leave it to the courts? Mr. Coleman will certainly have grounds to contest the result in court, but he'll be at a disadvantage given that courts are understandably reluctant to overrule a certified outcome.

Meanwhile, Minnesota's other Senator, Amy Klobuchar, is already saying her fellow Democrats should seat Mr. Franken when the 111th Congress begins this week if the Canvassing Board certifies him as the winner. This contradicts Minnesota law, which says the state cannot award a certificate of election if one party contests the results. Ms. Klobuchar is trying to create the public perception of a fait accompli, all the better to make Mr. Coleman look like a sore loser and build pressure on him to drop his legal challenge despite the funny recount business.

Minnesotans like to think that their state isn't like New Jersey or Louisiana, and typically it isn't. But we can't recall a similar recount involving optical scanning machines that has changed so many votes, and in which nearly every crucial decision worked to the advantage of the same candidate. The Coleman campaign clearly misjudged the politics here, and the apparent willingness of a partisan like Mr. Ritchie to help his preferred candidate, Mr. Franken. If the Canvassing Board certifies Mr. Franken as the winner based on the current count, it will be anointing a tainted and undeserving Senator.

from Reuters, 2009-Feb-12, by Jon Hurdle:

U.S. judges admit to jailing children for money

PHILADELPHIA - Two judges pleaded guilty on Thursday to accepting more than $2.6 million from a private youth detention center in Pennsylvania in return for giving hundreds of youths and teenagers long sentences.

Judges Mark Ciavarella and Michael Conahan of the Court of Common Pleas in Luzerne County, Pennsylvania, entered plea agreements in federal court in Scranton admitting that they took payoffs from PA Childcare and a sister company, Western PA Childcare, between 2003 and 2006.

"Your statement that I have disgraced my judgeship is true," Ciavarella wrote in a letter to the court. "My actions have destroyed everything I worked to accomplish and I have only myself to blame."

Conahan, who along with Ciavarella faces up to seven years in prison, did not make any comment on the case.

When someone is sent to a detention center, the company running the facility receives money from the county government to defray the cost of incarceration. So as more children were sentenced to the detention center, PA Childcare and Western PA Childcare received more money from the government, prosecutors said.

Teenagers who came before Ciavarella in juvenile court often were sentenced to detention centers for minor offenses that would typically have been classified as misdemeanors, according to the Juvenile Law Center, a Philadelphia nonprofit group.

One 17-year-old boy was sentenced to three months' detention for being in the company of another minor caught shoplifting.

Others were given similar sentences for "simple assault" resulting from a schoolyard scuffle that would normally draw a warning, a spokeswoman for the Juvenile Law Center said.

The Constitution guarantees the right to legal representation in U.S. courts. But many of the juveniles appeared before Ciavarella without an attorney because they were told by the probation service that their minor offenses didn't require one.

Marsha Levick, chief counsel for the Juvenile Law Center, estimated that of approximately 5,000 juveniles who came before Ciavarella from 2003 and 2006, between 1,000 and 2,000 received excessively harsh detention sentences. She said the center will sue the judges, PA Childcare and Western PA Childcare for financial compensation for their victims.

"That judges would allow their greed to trump the rights of defendants is just obscene," Levick said.

The judges attempted to hide their income from the scheme by creating false records and routing payments through intermediaries, prosecutors said.

The Pennsylvania Supreme Court removed Ciavarella and Conahan from their duties after federal prosecutors filed charges on January 26. The court has also appointed a judge to review all the cases involved.

from the Wall Street Journal, 2008-Oct-28, by Steven G. Calabresi:

Obama's 'Redistribution' Constitution
The courts are poised for a takeover by the judicial left.

One of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts.

Consider the most important lower federal court in the country: the United States Court of Appeals for the District of Columbia Circuit. In his two terms as president, Ronald Reagan appointed eight judges, an average of one a year, to this court. They included Robert Bork, Antonin Scalia, Kenneth Starr, Larry Silberman, Stephen Williams, James Buckley, Douglas Ginsburg and David Sentelle. In his two terms, George W. Bush was able to name only four: John Roberts, Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh.

Although two seats on this court are vacant, Bush nominee Peter Keisler has been denied even a committee vote for two years. If Barack Obama wins the presidency, he will almost certainly fill those two vacant seats, the seats of two older Clinton appointees who will retire, and most likely the seats of four older Reagan and George H.W. Bush appointees who may retire as well.

The net result is that the legal left will once again have a majority on the nation's most important regulatory court of appeals.

The balance will shift as well on almost all of the 12 other federal appeals courts. Nine of the 13 will probably swing to the left if Mr. Obama is elected (not counting the Ninth Circuit, which the left solidly controls today). Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. That includes the federal appeals courts for New York City, Los Angeles, Chicago, Boston, Philadelphia and virtually every other major center of finance in the country.

On the Supreme Court, six of the current nine justices will be 70 years old or older on January 20, 2009. There is a widespread expectation that the next president could make four appointments in just his first term, with maybe two more in a second term. Here too we are poised for heavy change.

These numbers ought to raise serious concern because of Mr. Obama's extreme left-wing views about the role of judges. He believes -- and he is quite open about this -- that judges ought to decide cases in light of the empathy they ought to feel for the little guy in any lawsuit.

Speaking in July 2007 at a conference of Planned Parenthood, he said: "[W]e need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

On this view, plaintiffs should usually win against defendants in civil cases; criminals in cases against the police; consumers, employees and stockholders in suits brought against corporations; and citizens in suits brought against the government. Empathy, not justice, ought to be the mission of the federal courts, and the redistribution of wealth should be their mantra.

In a Sept. 6, 2001, interview with Chicago Public Radio station WBEZ-FM, Mr. Obama noted that the Supreme Court under Chief Justice Earl Warren "never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society," and "to that extent as radical as I think people tried to characterize the Warren Court, it wasn't that radical."

He also noted that the Court "didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted." That is to say, he noted that the U.S. Constitution as written is only a guarantee of negative liberties from government -- and not an entitlement to a right to welfare or economic justice.

This raises the question of whether Mr. Obama can in good faith take the presidential oath to "preserve, protect, and defend the Constitution" as he must do if he is to take office. Does Mr. Obama support the Constitution as it is written, or does he support amendments to guarantee welfare? Is his provision of a "tax cut" to millions of Americans who currently pay no taxes merely a foreshadowing of constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth? Perhaps the candidate ought to be asked to answer these questions before the election rather than after.

Every new federal judge has been required by federal law to take an oath of office in which he swears that he will "administer justice without respect to persons, and do equal right to the poor and to the rich." Mr. Obama's emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.

The legal left wants Americans to imagine that the federal courts are very right-wing now, and that Mr. Obama will merely stem some great right-wing federal judicial tide. The reality is completely different. The federal courts hang in the balance, and it is the left which is poised to capture them.

A whole generation of Americans has come of age since the nation experienced the bad judicial appointments and foolish economic and regulatory policy of the Johnson and Carter administrations. If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.

Nothing less than the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation's courtrooms.

Mr. Calabresi is a co-founder of the Federalist Society and a professor of law at Northwestern University.

from ABC News, 2008-Dec-19, by Susan Donaldson James:

Woman Sued for Rescue Effort in Car Crash
Legal Experts Say California Ruling Could Make Good Samaritans Hesitate

No good deed goes unpunished, or so goes the saying.

Such was the case with Lisa Torti, who is being sued for pulling a now-paralyzed friend from the wreckage of a Los Angeles car accident in 2004.

The victim's lawyers claim the Good Samaritan bumbled the rescue and caused injury by yanking her friend "like a rag doll" to safety.

But Torti -- now a 30-year-old interior designer from Las Vegas -- said she thought she had seen smoke and feared the car would explode. She claims she was only trying to help her friend, Alexandra Van Horn, and her own life has been adversely affected by the incident.

"I know [Van Horn] has a lot of financial issues and her life has changed," she said. "But it's not my fault. I can't be angry at her, only the path she has chosen to take. I can only pray it helps her."

"I don't have any more fight left," Torti told ABCNews.com, choking back tears. "It's really emotional."

The California Supreme Court ruled this week that Van Horn may sue Torti for allegedly causing her friend's paralysis. The case -- the first of its kind -- challenges the state's liability shield law that protects people who give emergency assistance.

Only Medical Workers Immune

The court ruled 4-3 that only those administering medical care have legal immunity, but not those like Torti, who merely take rescue action. The justices said that the perceived danger to Van Horn in the wrecked car was not "medical."

The court majority said the 1980 Emergency Medical Service Act, which Torti's lawyers cited for protection, was intended only to encourage people to learn first aid and use it in emergencies, not to give Good Samaritans blanket immunity when they act negligently.

Van Horn's lawsuit will go on to trial court to determine if Torti is to blame for Van Horn's paralysis.

But some legal experts say the ruling may discourage people from trying to save lives.

"What they are saying is that if you pull someone out of a pool, if you provide CPR, you do have a defense," said Torti's lawyer, Jody Steinberg.

"It seems to defy logic," he said. "At a certain point anyone who instructs or educates [in emergencies] will advise that you must hesitate. Those split-second decisions will be gone and someone could die."

Emergency Trainers Worry

The Boy Scouts of America, which offers emergency training to youth, filed a "friend of the court" brief in the case.

But Van Horn's lawyers said their argument is "nonsense."

At the time of the accident, Torti and Van Horn, both make-up artists, were acquaintances at work. They had been drinking with a group of friends and left a bar in suburban Chatsworth after a Halloween party, according to court papers.

The car in which Van Horn and another passenger were riding spun out of control and hit a telephone pole. Torti said she was a passenger in another car that was following them. Before emergency crews arrived, she allegedly offered to help Van Horn from the wreckage.

"There could be so many things that could happen and I obviously wanted to get her out of the car," said Torti. "She said she couldn't move. I did the best thing I could to move her from the situation and get her out of danger to a place that was a little safer."

Torti said she put one arm under the victim's legs and one behind her back, carrying her out of the car. But Van Horn testified that her friend grabbed her by the arm and pulled her from the car "like a rag doll," allegedly causing injury to a vertebrae and a lacerated liver.

Jury to Decide What Caused Paralysis

Court documents showed that the question of whether she was paralyzed during the crash or when she was pulled out of the car is in dispute.

"She said she couldn't move out of the car," said Torti. "They exaggerated it. I would never drag someone out of anything or pull someone out like a rag doll."

But Van Horn's lawyer, Robert Hutchinson, told ABCNews.com that witnesses said there was never any danger of an explosion, and both the driver and a backseat passenger were still in the car when Torti took Van Horn from the vehicle.

"[Van Horn] got her seat belt off and was stunned," said Hutchinson. "She couldn't open the door and without being asked Ms. Torti grabbed and pulled her out of the car. It was her belief that the car was about to explode."

Hutchinson argues that despite her belief that there had been an explosion, Torti pulled the victim at an angle and dumped her on a hard median next to the car, allegedly injuring Van Horn's spine.

Victim 'Ruined for Life'

"We all know that anyone suspected of a spinal injury should not be moved," he said. "She was not bleeding and was conscious. If the car had been on fire, why didn't she carry her 50 yards away?"

Van Horn was taken to the hospital where she underwent surgery. Now 26, she has returned to her home in Minneapolis and is confined to a wheelchair. "She is ruined for life," said Hutchinson.

But Torti said her life, too, has also been changed forever, "jolting" her relationship with her parents, whose homeowner's insurance will end up paying if she loses the case.

Peter Keane, a dean emeritus and professor of law at Golden Gate Law School, said the impact of the court ruling will "be a bad one" and have repercussions in about a dozen other states that have Good Samaritan laws.

Good Samaritans Will Now 'Hesitate'

He said the ruling will force ordinary people to be "reflective" before coming to the aid of a person in an emergency.

"It's much too literal an interpretation of the immunity law for Good Samaritans," he told ABCNews.com. "Now it puts the onus on the lay person in an emergency situation to try to figure out the nuances of what medical care means, something that could subject them to liability later on."

Meanwhile, Torti said she feels betrayed by a former colleague and is now shy about helping others.

"I am really shocked it turned out the way it did," said Torti.

"How do you explain what you feel when someone you help is going after your money?" she said. "I am really sad because I have always known how to help people and now I always second guess myself. You want to make sure you do the right thing, but you're scared. The world turns us into robots that don't care."

from the Chicago Sun-Times, 2008-Dec-9, by Natasha Korecki:

Gov. Blagojevich and Operation Board Games

Gov. Blagojevich, wearing a black and blue jogging suit, appeared before a federal judge this afternoon on corruption charges.

U.S. Magistrate Judge Nan Nolan set a $4,500 personal-recognizance bond for the governor, who was arrested at his North Side home this morning.

After the hearing, Blagojevich walked to Assistant U.S. Attorney Carrie Hamilton, shook her hand and said something to her.

Blagojevich arrived at his Northwest side home at 2:30 p.m., blocked from the media by large umbrellas and shepherded through the back ally.

Blagojevich's chief of staff, John Harris, who is also charged with the governor, was given similar bond by Nolan. When the two saw each other, Blagojevich shook Harris' hand and greeted him.

The courtroom included a number of extra security, including Kim Widup, the current U.S. marshal in Chicago.

Nolan greeted Blagojevich, saying "Good afternoon, governor,'' to which Blagojevich replied, "Good afternoon.'' As the charges were being read, Blagojevich folded his arms in front of him.

Both Blagojevich and Harris agreed to surrender their passports under the judge's terms.

Blagojevich is being represented by Chicago attorney Sheldon Sorosky. Harris is being represented by Terry Ekl and James Sotos.

Blagojevich Harris were arrested at their homes this morning in a probe involving the governor's quest to fill Sen. Barack Obama's open Senate seat and focusing on wire fraud and bribery charges.

Meanwhile, President-elect Barack Obama said he never knew the governor was trying to shake him down.

"I had no contact with the governor or his office so I was not aware of what was happening and, as I said, it was a sad day for Illinois," Obama said.

"Like the rest of the people of Illinois, I am saddened and sobered by the news coming out of the U.S. Attorney's office. But as this is an ongoing investigation involving the governor's office, I don't think it would be appropriate for me to comment at this time."

Blagojevich and Harris were arrested at their homes this morning in a probe involving the governor's quest to fill Sen. Barack Obama's open Senate seat and focusing on wire fraud and bribery charges.

The charges also include alleged attempts by the governor to influence the Tribune editorial board, threatening, that if the Tribune didn't support him, he wouldn't approve the sale of Wrigley Field.

Gov. Blagojevich got the call at 6 a.m. It was the head of Chicago's FBI office to tell him he was being arrested.

“Well, I woke him up,” Robert Grant said. “The first thing he asked was this a joke. He wanted to make sure this was an honest call.”

Grant said he told the governor two agents were standing outside his door, and asked him to open the door “so we can do this as quietly.”

“He was very cooperative,” Grant said, adding that the governor's two young daughters were asleep but his wife Patti was awake.

The governor was led away in handcuffs, “as is usual protocol,” Grant said.

At a news conference hours later, U.S. Attorney Patrick Fitzgerald said the corruption charges against Blagojevich represent “a truly new low” and “would make Lincoln roll over in his grave.”

“This is a sad day for government,” he said at a news conference with federal prosecutors to discuss the arrest of Blagojevich. “Gov. Blagojevich has taken us to a truly new low."

Fitzgerald called Blagojevich's actions in the last several weeks as “a political corruption crime spree.”

The head of the FBI office in Chicago said if Illinois isn't the most corrupt state in the United States, it's a strong competitor.

The charges accuse Blagojevich of trying to benefit financially from his ability to appoint President-elect Barack Obama's replacement in the U.S. Senate.

Fitzgerald says federal investigators bugged the Democrat's campaign offices and placed a tap on his home phone. And Grant says even seasoned investigators were stunned by what they heard on those tapes.

Fitzgerald described the situation by saying: “We were in the middle of a corruption crime spree and we wanted to stop it.”

The complaint contends Blagojevich, a Democrat, threatened to withhold substantial state assistance to the Tribune Co. in connection with the sale of Wrigley to induce the firing of Chicago Tribune editorial board members critical of Blagojevich.

The governor is also accused of obtaining campaign contributions in exchange for official actions — in the past and recently in a push before a new state ethics law takes effect Jan. 1.

Blagojevich, 51, and Harris, 46, both of Chicago, are each charged with conspiracy to commit mail and wire fraud and solicitation of bribery. They were charged in a two-count criminal complaint that was sworn out on Sunday and unsealed today following their arrests, which occurred without incident, the feds said.

A 76-page FBI affidavit alleges that Blagojevich was intercepted on court-authorized wiretaps during the last month conspiring to sell or trade Illinois' U.S. Senate seat vacated by Obama for financial and other personal benefits for himself and his wife.

At various times, in exchange for the Senate appointment, Blagojevich allegedly discussed obtaining:

• A substantial salary for himself at a either a non-profit foundation or an organization affiliated with labor unions.

• Placing his wife on corporate boards where he speculated she might garner as much as $150,000 a year.

• Promises of campaign funds — including cash up front.

• A cabinet post or ambassadorship for himself.

On Dec. 4, Blagojevich allegedly told an advisor that he might “get some (money) up front, maybe” from Senate Candidate 5, if he named Senate Candidate 5 to the Senate seat, to insure that Senate Candidate 5 kept a promise about raising money for Blagojevich if he ran for re-election.

In a recorded conversation on Oct. 31, Blagojevich claimed he was approached by an associate of Senate Candidate 5 as follows: “We were approached to `pay to play.' That, you know, he'd raise 500 grand. An emissary came. Then the other guy would raise a million, if I made him (Senate Candidate 5) a Senator.”

On Nov. 7, while talking on the phone about the Senate seat with Harris and an advisor, Blagojevich said he needed to consider his family and that he is “financially” hurting, the complaint states.

Harris allegedly said that they were considering what would help the “financial security” of the Blagojevich family and what will keep Blagojevich “politically viable.”

Blagojevich stated, “I want to make money,” adding later that he is interested in making $250,000 to $300,000 a year, the complaint alleges.

On Nov. 10, in a lengthy telephone call with numerous advisors that included discussion about Blagojevich obtaining a lucrative job with a union-affiliated organization — in exchange for appointing a particular Senate candidate whom he believed was favored by the President-elect — Blagojevich and others discussed various ways Blagojevich could “monetize” the relationships he has made as governor to make money after leaving that office, the complain alleges.

“The breadth of corruption laid out in these charges is staggering,” U.S. Attorney Patrick Fitzgerald said. “They allege that Blagojevich put a `for sale' sign on the naming of a United States Senator; involved himself personally in pay-to-play schemes with the urgency of a salesman meeting his annual sales target; and corruptly used his office in an effort to trample editorial voices of criticism.

“The citizens of Illinois deserve public officials who act solely in the public's interest, without putting a price tag on government appointments, contracts and decisions,” he added.

Robert Grant, in charge of the FBI office in Chicago, added: “Many, including myself, thought that the recent conviction of a former governor would usher in a new era of honesty and reform in Illinois politics. Clearly, the charges announced today reveal that the office of the Governor has become nothing more than a vehicle for self-enrichment, unrestricted by party affiliation and taking Illinois politics to a new low.”

Federal agents today also executed search warrants at the offices of Friends of Blagojevich at 4147 N. Ravenswood.

The feds said the charges focus on events since October when they obtained information that Blagojevich and “Fundraiser A,” who is chairman of Friends of Blagojevich, were accelerating Blagojevich's allegedly corrupt fund-raising activities. The goal was to accumulate as much money as possible this year before a new state ethics law would severely curtail Blagojevich's ability to raise money from individuals and entities that have existing contracts worth more than $50,000 with the state of Illinois.

Agents said they learned that Blagojevich was seeking approximately $2.5 million in campaign contributions by the end of the year, principally from or through individuals or entities — many of whom have received state contacts or appointments — identified on a list maintained by Friends of Blagojevich, which the FBI has obtained.

The complaint details several incidents involving efforts by Blagojevich to obtain campaign contributions in connection with his official actions as governor, including three in early October:

• After an Oct. 6 meeting with Harris and Individuals A and B, during which Individual B sought state help with a business venture, Blagojevich told Individual A to approach Individual B about raising $100,000 for Friends of Blagojevich this year. Individual A said he later learned that Blagojevich reached out directly to Individual B to ask about holding a fund-raiser.

• Also on Oct. 6, Blagojevich told Individual A that he expected Highway Contractor 1 to raise $500,000 in contributions and that he was willing to commit additional state money to a Tollway project — beyond $1.8 billion that Blagojevich announced on Oct.15 — but was waiting to see how much money the contractor raised for Friends of Blagojevich.

• On Oct. 8, Blagojevich told Individual A that he wanted to obtain a $50,000 contribution from Hospital Executive 1, the chief executive officer of Children's Memorial Hospital in Chicago, which had recently received a commitment of $8 million in state funds. When the contribution was not forthcoming, Blagojevich discussed with Deputy Governor A the feasibility of rescinding the funding.

On Oct. 21, the government obtained a court order authorizing the interception of conversations in both a personal office and a conference room used by Blagojevich at the offices of Friends of Blagojevich. The FBI began intercepting conversations in those rooms on the morning of Oct. 22.

A second court order was obtained last month allowing those interceptions to continue.

On Oct. 29, a court order was signed authorizing the interception of conversations on a hardline telephone used by Blagojevich at his home. That wiretap was extended for 30 days on Nov. 26, according to the affidavit.

Another alleged example of a pay-to-play scheme was captured in separate telephone conversations that Blagojevich had with Fundraiser A on November 13 and Lobbyist 1 on Dec. 3. Lobbyist 1 was reporting to Blagojevich about his efforts to collect a contribution from Contributor 1 and related that he “got in his face” to make it clear to Contributor 1 that a commitment to make a campaign contribution had to be done now, before there could be some skittishness over the timing of the contribution and Blagojevich signing a bill that would benefit Contributor 1.

Blagojevich commented to Lobbyist 1 “good” and “good job.” The bill in question, which is awaiting Blagojevich 's signature, is believed to be legislation that directs a percentage of casino revenue to the horse racing industry.

Regarding the Senate seat, the charges allege that Blagojevich, Harris and others have engaged and are engaging in efforts to obtain personal gain, including financial gain, to benefit Blagojevich and his family through corruptly using Blagojevich's sole authority to appoint a successor to the unexpired term of the President-elect's former Senate seat, which he resigned effective Nov. 16.

The affidavit details numerous conversations about the Senate seat between Nov. 3 and Dec. 5. In these conversations, Blagojevich allegedly discussed the attributes of potential candidates, including their abilities to benefit the people of Illinois, and the financial and political benefits he and his wife could receive if he appointed various of the possible candidates.

Throughout the intercepted conversations, Blagojevich also allegedly spent significant time weighing the option of appointing himself to the open Senate seat and expressed a variety of reasons for doing so, according to the affidavit, including:

• Frustration at being “stuck” as governor;

• A belief that he will be able to obtain greater resources if he is indicted as a sitting Senator as opposed to a sitting governor;

• A desire to remake his image in consideration of a possible run for President in 2016;

• Avoiding impeachment by the Illinois legislature;

• Making corporate contacts that would be of value to him after leaving public office;

• Facilitating his wife's employment as a lobbyist;

• And generating speaking fees should he decide to leave public office.

In the earliest intercepted conversation about the Senate seat described in the affidavit, Blagojevich told Deputy Governor A on Nov. 3 that if he is not going to get anything of value for the open seat, then he will take it for himself: “If . . . they're not going to offer anything of any value, then I might just take it.”

Later that day, speaking to Advisor A, Blagojevich allegedly said: “I'm going to keep this Senate option for me a real possibility, you know, and therefore I can drive a hard bargain.” He added later that the seat “is a [expletive] valuable thing, you just don't give it away for nothing.”

Over the next couple of days — Election Day and the day after — Blagojevich was allegedly captured discussing with Deputy Governor A whether he could obtain a cabinet position, such as Secretary of Health and Human Services or the Department of Energy or various ambassadorships.

In a conversation with Harris on Nov. 4, Blagojevich compared his situation to that of a sports agent shopping a potential free agent to the highest bidder. The day after the election, Harris allegedly suggested to Blagojevich that the President-elect could make him the head of a private foundation.

Later on Nov. 5, Blagojevich said to Advisor A, “I've got this thing and it's [expletive] golden, and, uh, uh, I'm just not giving it up for [expletive] nothing. I'm not gonna do it. And, and I can always use it. I can parachute me there,” the affidavit states.

Two days later, in a three-way call with Harris and Advisor B, a consultant in Washington, Blagojevich and the others allegedly discussed the prospect of a three-way deal for the Senate appointment involving an organization called “Change to Win,” which is affiliated with various unions including the Service Employees International Union (SEIU).

On Nov. 10, Blagojevich, his wife, Harris, Governor General Counsel, Advisor B and other Washington-based advisors participated at different times in a two-hour phone call in which they allegedly discussed, among other things, a deal involving the SEIU.

Harris allegedly said they could work out a deal with the union and the President-elect where SEIU could help the President-elect with Blagojevich's appointment of Senate Candidate 1, while Blagojevich would obtain a position as the national director of the Change to Win campaign and SEIU would get something favorable from the President-elect in the future.

Also during that call, Blagojevich agreed it was unlikely that Obama would name him Secretary of Health and Human Services or give him an ambassadorship because of all of the negative publicity surrounding him, according to the complaint.

In a conversation with Harris on Nov. 11, the charges state, Blagojevich said he knew Obama wanted Senate Candidate 1 for the open seat but “they're not willing to give me anything except appreciation. [Expletive] them.”

Earlier in that conversation, Blagojevich suggested starting a 501(c)(4) non-profit organization, which he could head and engage in political activity and lobbying. In that conversation with Harris and other discussions with him and others over the next couple of days, Blagojevich suggested by name several well-known, wealthy individuals who could be prevailed upon to seed such an organization with $10 million to $15 million, and suggesting that he could take the organization's reins when he is no longer governor, according to the affidavit.

On Nov. 12, Blagojevich spoke with SEIU Official who was in Washington. This conversation occurred about a week after Blagojevich had met with SEIU Official to discuss the Senate seat, with the understanding that the union official was an emissary to discuss Senate Candidate 1's interest in the Senate seat.

During the Nov. 12 conversation, Blagojevich allegedly explained the non-profit organization idea to SEIU Official and said that it could help Senate Candidate 1. The union official agreed to “put that flag up and see where it goes,” although the official also had said he wasn't certain if Senate Candidate 1 wanted the official to keep pushing her candidacy. Senate Candidate 1 eventually removed herself from consideration for the open seat.

Also on Nov. 12, in a conversation with Harris, the complaint affidavit states that Blagojevich said his decision about the open Senate seat will be based on three criteria in the following order of importance: “Our legal situation, our personal situation, my political situation. This decision, like every other one, needs to be based upon that. Legal. Personal. Political.”

Harris said: “Legal is the hardest one to satisfy.”

Blagojevich said that his legal problems could be solved by naming himself to the Senate seat.

As recently as Dec. 4, in separate conversations with Advisor B and Fundraiser A, Blagojevich said that he was “elevating” Senate Candidate 5 on the list of candidates because, among other reasons, if Blagojevich ran for re-election, Senate Candidate 5 would “raise money” for him.

Blagojevich said that he might be able to cut a deal with Senate Candidate 5 that provided Blagojevich with something “tangible up front.”

Noting that he was going to meet with Senate Candidate 5 in the next few days, Blagojevich told Fundraiser A to reach out to an intermediary (Individual D), from whom Blagojevich is attempting to obtain campaign contributions and who Blagojevich believes is close to Senate Candidate 5.

Blagojevich told Fundraiser A to tell Individual D that Senate Candidate 5 was a very realistic candidate but Blagojevich was getting a lot of pressure not to appoint Senate Candidate 5, according to the affidavit.

Blagojevich allegedly told Fundraiser A to tell Individual D that if Senate Candidate 5 is going to be chosen, “some of this stuff's gotta start happening now . . . right now . . . and we gotta see it.”

Blagojevich continued, “You gotta be careful how you express that and assume everybody's listening, the whole world is listening. You hear me?”

Blagojevich further directed Fundraiser A to talk to Individual D in person, not by phone, and to communicate the “urgency” of the situation.

Blagojevich spoke to Fundraiser A again the next day, Dec. 5, and discussed that day's Chicago Tribune front page article stating that Blagojevich had recently been surreptitiously recorded as part of the ongoing criminal investigation.

Blagojevich instructed Fundraiser A to “undo your [Individual D] thing,” and Fundraiser A confirmed it would be undone, the complaint alleges.

Also on Dec. 5, Blagojevich and three others allegedly discussed whether to move money out of the Friends of Blagojevich campaign fund to avoid having the money frozen by federal authorities and also considered the possibility of prepaying the money to Blagojevich's criminal defense attorney with an understanding that the attorney would donate the money back at a later time if it was not needed. They also discussed opening a new fund raising account named Citizens for Blagojevich with new contributions.

According to the affidavit, intercepted phone calls revealed that the Tribune Company, which owns the Chicago Tribune and the Chicago Cubs, has explored the possibility of obtaining assistance from the Illinois Finance Authority relating to the Tribune Company's efforts to sell the Cubs and the financing or sale of Wrigley Field.

In a Nov. 6 phone call, Harris explained to Blagojevich that the deal the Tribune Company was trying to get through the IFA was basically a tax mitigation scheme in which the IFA would own title to Wrigley Field and the Tribune would not have to pay capital gains tax, which Harris estimated would save the company approximately $100 million.

Intercepted calls allegedly show that Blagojevich directed Harris to inform the Tribune and an associate, identified as Tribune Financial Advisor, that state financial assistance would be withheld unless members of the Chicago Tribune's editorial board were fired, primarily because Blagojevich viewed them as driving discussion of his possible impeachment.

In a Nov. 4 phone call, Blagojevich allegedly told Harris that he should say to Tribune Financial Advisor, the Cubs chairman and the Tribune owner, “our recommendation is fire all those [expletive] people, get `em the [expletive] out of there and get us some editorial support.”

On Nov. 6, the day of a Tribune editorial critical of Blagojevich , Harris told Blagojevich that he told Tribune Financial Advisor the previous day that things “look like they could move ahead fine but, you know, there is a risk that all of this is going to get derailed by your own editorial page.”

Harris also told Blagojevich that he was meeting with Tribune Financial Advisor on Nov. 10.

In a Nov. 11 intercepted call, Harris allegedly told Blagojevich that Tribune Financial Advisor talked to Tribune Owner and Tribune Owner “got the message and is very sensitive to the issue.”

Harris told Blagojevich that according to Tribune Financial Advisor, there would be “certain corporate reorganizations and budget cuts coming and, reading between the lines, he's going after that section.”

Blagojevich allegedly responded: “Oh. That's fantastic.”

from the Associated Press, 2008-Dec-20, by Mike Robinson:

Senate seat only part of case vs. Ill. governor

CHICAGO — Corruption charges against Illinois Gov. Rod Blagojevich focus on much more than the claim that he tried to sell or trade Barack Obama's U.S. Senate seat.

That charge could be just gravy to prosecutors. But the meat and potatoes are buried deep within a 76-page affidavit tacked onto the charges, and they have a familiar look.

Evidence of misuse of political clout, fixed contracts and illegal campaign fundraising — the basic staples of corruption in Illinois — proved persuasive with the jury at influence peddler Tony Rezko's fraud trial. He was convicted and awaits sentencing.

That same evidence is now coming back to bite Blagojevich. This time around it could be even stronger because Rezko — the political fundraiser who helped to bankroll the campaigns of both Blagojevich and Obama — may take the stand to point the finger at the governor.

Rezko, for example, was on hand while Blagojevich talked to a campaign donor about putting him on the state payroll with the donor's $25,000 check on the table, according to testimony at Rezko's trial.

Blagojevich has been in the national spotlight since his Dec. 9 arrest, with a criminal complaint alleging he was caught on secretly recorded phone calls talking about money or favors he could get in return for his power to appoint someone to Obama's seat. The seat remains vacant, and the Democrat-controlled legislature went home this past week without taking up a bill to have a special election to fill it.

The governor strongly proclaimed his innocence on Friday, telling reporters he is "not guilty of any criminal wrongdoing." He did not take questions.

"I will fight, I will fight, I will fight until I take my last breath," Blagojevich said. "I have done nothing wrong, and I'm not going to quit a job the people hired me to do because of false accusations and political lynch mob."

His attorney, Ed Genson, spent the week shooting down the federal case, claiming the federal wiretaps used to capture his conversations were illegal and dismissing his discussions about the Senate seat as just talk.

"There's no evidence that anyone ever asked anybody for anything with regard to that seat," Genson said as a legislative impeachment panel began considering whether to try to remove Blagojevich from office.

Legal experts such as Professor Leonard L. Cavise of DePaul University say federal prosecutors may have a long way to go before they have all the evidence they need that Blagojevich tried to trade or sell the Senate seat. But some say the tale of corruption coming from the witness stand at Rezko's trial is much firmer.

"All that stuff has been investigated for years, all that stuff is pretty much tried and true," says Cavise.

Blagojevich, 52, was arrested by FBI agents and charged with conspiracy to commit fraud and solicitation to commit bribery.

The first charge alleges that he defrauded the people of Illinois of his honest services as governor. It ties together material from the Rezko trial and the allegations concerning the Senate seat.

The second charge alleges that he sought to use his economic power as governor to force the Chicago Tribune to fire editorial writers calling for his impeachment.

Genson gave a peek into the defense case when he argued that the legislative impeachment panel should not consider statements by Ali Ata, who got his job as head of the Illinois Finance Authority from Blagojevich through Rezko, and prominent Democratic fundraiser Joseph Cari. They were caught up in the federal investigation and, in their guilty pleas, alleged that Blagojevich talked with them about trading jobs for campaign donations.

"Mr. Ata is a convicted perjurer," Genson said. "Mr. Cari is an extortionist."

Both could be witnesses if Blagojevich goes to trial.

There is no certainty that Rezko will take the witness stand, but if he did he would be the star witness. In addition to being a top fundraiser for Blagojevich, he was part of the governor's inner circle.

He is believed to be trying to make a deal with prosecutors that would provide him with a break at sentencing but has had trouble doing so. Making a deal is in his interest; he faces years in prison for his conviction in June on charges of plotting to squeeze several firms for kickbacks.

And he's due to go to trial early next year on charges of swindling the G.E. Capital Corp. out of $10 million in the sale of a group of pizza restaurants.

Rezko already has told prosecutors his version of what they say was a plot to stack the Illinois Health Facilities Planning Board and ram through a major expansion program for Mercy Hospital in return for a major contribution to Blagojevich's campaign fund. It's one of many allegations they have investigated of job and favor trading for campaign contributions.

The board, which has life and death power over millions of dollars in hospital expansions, approved the Mercy plan, but it was later killed in a civil lawsuit.

"Rezko has admitted that he manipulated the Mercy vote based on Mercy's agreement to make a contribution to Blagojevich, which agreement he states was communicated to Blagojevich," prosecutors say in the affidavit filed in the governor's case.

from Time, 2008-Dec-9, by Karen Tumulty:

Rangel's Troubles Create a Problem for the Democrats

Washington scandals tend to build like snowdrifts. They start with a little flaky business, but if the wind starts blowing hard enough, they can swallow you before you know it.

That's why Charlie Rangel might be looking for a shovel these days. The flurries started last summer as a series of embarrassing revelations. Among them was the fact that Rangel was occupying four rent-controlled apartments simultaneously in Upper Manhattan, and that his tax returns — Rangel is the chairman of the tax code–writing House Ways and Means Committee — were such a mess that he was hiring a "forensic auditor" to figure out why he had failed to report $75,000 in rental income from a villa in the Dominican Republic. Adding to the tangle of questions was the fact that, even as he was living in those New York apartments and being charged less than half what they would cost on the going market, Rangel was claiming a homestead exemption on a house he owns in Washington, D.C.

All of that might be written off as small lapses, or even just sloppiness. But any snickering stopped last week, when the New York Times reported that Rangel had been "instrumental" in preserving a lucrative tax loophole that benefited an oil-drilling company whose chief executive had pledged $1 million to a school of public service named for Rangel at City College of New York CCNY). Now the doubts surrounding Rangel have grown to the point that House Speaker Nancy Pelosi is worried they will linger past Barack Obama's inauguration and into the dawn of the new Democratic era. She issued a statement the day before Thanksgiving saying she expects the House Ethics Committee to complete its initial inquiry into Rangel — an investigation that the chairman called for himself — by Jan. 3.

Rangel's spokesman Emile Milne says no one is more eager than the chairman to see the Ethics Committee finish its work. "Chairman Rangel requested the review by the Ethics Committee and is confident that he behaved appropriately in these matters," Milne said in a statement he e-mailed to TIME.com. "He looks forward to leading the Ways and Means Committee in January as the new Congress works in partnership with our new President to create jobs and help our struggling families."

There are few posts more powerful than chairman of the House Ways and Means Committee, which not only writes tax law but also oversees trade policy and is responsible for the nearly half of the federal budget that goes toward Social Security, Medicare and means-tested entitlements. Complicating the matter for House Democratic leaders is the lack of an obvious successor for Rangel at this time of economic turmoil. The next in line for the post by seniority is California Congressman Pete Stark, one of the most liberal and hotheaded members of Congress. He has been known to challenge other members of the committee to fight him, and once called a Republican colleague a "little wimp" and a "fruitcake."

Meanwhile, Rangel, 78 — one of the most recognizable and beloved figures on Capitol Hill — has gone to war with his hometown paper, particularly after its editorial page urged him to step aside as chairman while the ethical questions are being investigated. "His temporary yielding of the gavel is an urgent necessity for a Democratic Congress elected two years ago on promises of an ethical housecleaning," the New York Times editorialized in September. Earlier this week, after the paper published even more serious allegations, Rangel wrote a scathing letter to the editor denying that he had done anything improper with regard to the loophole that rewarded Nabors Industries and its CEO Eugene Isenberg, who had given the $1 million donation to CCNY. He also contended that New York Times reporter David Kocieniewski had ignored the facts of the matter "to promote his agenda — is irresponsible and should not be tolerated by any paper, especially The New York Times." On its website, the Times ran a rebuttal by Kocieniewski that was twice as long as Rangel's letter.

On Friday, yet another potential problem surfaced for Rangel, when Politico.com reported that he had paid his son $80,000 in campaign funds "for a pair of political websites so poorly designed an expert estimated one should have cost no more than $100 to create." Says congressional scholar Tom Mann: It's very sad, but it's sort of one thing after another. ... It's still too early to tell what the resolution will be, but it certainly isn't helpful that new items keep emerging."

from the Wall Street Journal, 2008-Nov-6:

Voters and Marriage
The people have spoken – again.

On the same day that Barack Obama carried California by 24 points, the state's voters nonetheless amended its constitution to define marriage as between a man and a woman. Late yesterday Proposition 8 was ahead 52% to 48% with 95% of precincts reporting.

This is a big event -- less for the merits of gay marriage than as a statement about democracy. In a referendum in 2000, 61% of California voters had voted to bar same-sex marriage in the state. But in a raw display of judicial power, a 4-3 Supreme Court majority erased that referendum by declaring in May that same-sex marriage was protected by the state constitution. So opponents of gay marriage had to return to the electorate to amend the state constitution. One of the more effective TV ads contrasted the millions who voted for that proposition in 2000 with the four judges who chose to impose their cultural will. And this is California, where the media portray anyone who opposes gay marriage as a bigot or yahoo.

Similar amendments also passed in Florida and Arizona Tuesday, bringing the number of states that have done so to 30. Arizona voters had defeated a similar measure two years ago, but it passed this year 56%-44%.

Clearly many of the voters who came out for Mr. Obama also voted for the gay marriage ban. The marriage amendments outperformed John McCain by 14 points in Florida and 15 in California. So what changed? The fact that two state Supreme Courts declared same-sex marriage a constitutionally guaranteed right this year -- California in May and Connecticut in October -- no doubt played a role in pushing the Florida and Arizona measures over the top.

All of which is a warning to the Obama Administration as it bids to seed the federal courts with judicial liberals. Mr. Obama says he opposes gay marriage, but he also opposes the 1996 Defense of Marriage Act that says states needn't honor same-sex marriage laws in other states. Opponents of that law, which was signed by Bill Clinton, are hoping Mr. Obama will appoint judges who will declare it unconstitutional.

Tuesday's vote shows that's a risky strategy. Instead of trying to impose gay marriage by judicial fiat, perhaps some democratic persuasion is in order. Same-sex marriage was not a divisive political issue until courts legislated it from the bench.

from the New York Post, 2008-Oct-27, by Scott W. Johnson:

Dubious Donations
Bam's Web Site Invites Fraud

Barack Obama has proved the greatest fund-raiser of all time by a long shot. His campaign has raised more than $600 million - $150 million in September alone. But the campaign has also failed to adopt standard protections against fraudulent giving.

The average contribution to Obama in September was just under $86. And federal law only requires the disclosure of identifying information for contributions in excess of $200. Campaigns must keep running totals for each donor and report them once they exceed $200.

The Federal Election Commission says the Obama campaign has reported well over $200 million as coming from contributions of $200 or less. Only a small portion of that sum is attributable to donors the Obama campaign has disclosed.

No presidential campaign has ever before received such a gargantuan sum of money from unidentified contributors.

The campaign's records reveal big contributors with names like "Doodad Pro" (employer: "Loving," profession: "You") and "Good Will" (same employer and profession). Both donated via credit card. Other reports have suggested that some donations come from overseas - raising the question of whether Obama is accepting donations from foreigners, another violation of federal law.

All of which prompted an enterprising citizen to test the controls put in place to enforce compliance with federal campaign law by the Obama and McCain campaigns. Last Thursday, he decided to conduct an experiment.

He went to the Obama campaign Web site and made a donation under the name "John Galt" (the hero of Ayn Rand's novel "Atlas Shrugged"). He provided the equally fictitious address "1957 Ayn Rand Lane, Galts Gulch, CO 99999."

He checked the box next to $15 and entered his actual credit-card number and expiration date. He was then taken to the next page and notified that his donation had been processed.

He then tried the same experiment on the McCain site, which rejected the transaction. He returned to the Obama site and made three more donations using the names Osama bin Laden, Saddam Hussein and Bill Ayers, all with different addresses but the same credit card. The transactions all went through. By Saturday, he'd reported that the transactions had all posted to his credit-card account.

Others repeated "John Galt's" experiment last week, giving to Obama under such fictitious names as Della Ware, Joe Plumber, Idiot Savant, Ima BadDonation (with a Canadian bank card) and Fake Donor.

What accounts for the Obama campaign's acceptance of these fraudulent donations? Most merchants selling goods and services use the basic Address Verification System that screens credit-card charges for matching names and addresses. (It can also screen cards issued by foreign banks.) The McCain campaign uses AVS and provides a searchable database of all donors, including those who fall below the $200 threshold. The Obama campaign apparently has chosen not to use the AVS system to screen donations.

"Della Ware" contacted The New York Times to report her experience contributing under a fictitious name and address ("12345 No Way") to the Obama campaign, while her contribution was rejected by the McCain campaign. Times reporter Michael Luo verified "Della Ware's" account and reported it online at the Times' campaign blog. But Luo missed the story's point.

"To be fair to the Obama campaign," he wrote, its "officials have said much of their checking for fraud occurs after the transactions have already occurred. When they find something wrong, they then refund the amount."

But the Obama campaign is running a system that complicates the discovery of "something wrong." It has chosen to operate an online contribution system that facilitates illegal falsely sourced contributions, illegal foreign contributions and the evasion of contribution limits.

Obama backers making such contributions may not be worried that "something wrong" will be detected if they have no intention of complaining about it.

According to journalist Kenneth Timmerman, the Obama site did not ask for proof of citizenship until just recently - in contrast not just with McCain but also with Hillary Clinton. Sen. Clinton's presidential campaign required US citizens living abroad to fax copies of their passports before it would accept donations. By contrast, foreign donors to Obama can just use credit cards and false addresses.

Why has the Obama campaign chosen to operate without the basic automated credit-card controls that would prevent or hamper fraud and illegal contributions? Has it made a conscious decision to assist the evasion of federal campaign law or worry about it after it has had the use of the money?

It's hard to see any other motive.

Scott W. Johnson is a Minneapolis attorney and contributor to the blog Power Line (powerlineblog.com).

from the Washington Post, 2008-Oct-29, p.A2, by Matthew Mosk:

Obama Accepting Untraceable Donations
Contributions Reviewed After Deposits

Sen. Barack Obama's presidential campaign is allowing donors to use largely untraceable prepaid credit cards that could potentially be used to evade limits on how much an individual is legally allowed to give or to mask a contributor's identity, campaign officials confirmed.

Faced with a huge influx of donations over the Internet, the campaign has also chosen not to use basic security measures to prevent potentially illegal or anonymous contributions from flowing into its accounts, aides acknowledged. Instead, the campaign is scrutinizing its books for improper donations after the money has been deposited.

The Obama organization said its extensive review has ensured that the campaign has refunded any improper contributions, and noted that Federal Election Commission rules do not require front-end screening of donations.

In recent weeks, questionable contributions have created headaches for Obama's accounting team as it has tried to explain why campaign finance filings have included itemized donations from individuals using fake names, such as Es Esh or Doodad Pro. Those revelations prompted conservative bloggers to further test Obama's finance vetting by giving money using the kind of prepaid cards that can be bought at a drugstore and cannot be traced to a donor.

The problem with such cards, campaign finance lawyers said, is that they make it impossible to tell whether foreign nationals, donors who have exceeded the limits, government contractors or others who are barred from giving to a federal campaign are making contributions.

"They have opened the floodgates to all this money coming in," said Sean Cairncross, chief counsel to the Republican National Committee. "I think they've made the determination that whatever money they have to refund on the back end doesn't outweigh the benefit of taking all this money upfront."

The Obama campaign has shattered presidential fundraising records, in part by capitalizing on the ease of online giving. Of the $150 million the senator from Illinois raised in September, nearly $100 million came in over the Internet.

Lawyers for the Obama operation said yesterday that their "extensive back-end review" has carefully scrubbed contributions to prevent illegal money from entering the operation's war chest. "I'm pretty sure if I took my error rate and matched it against any other campaign or comparable nonprofit, you'd find we're doing very well," said Robert Bauer, a lawyer for the campaign. "I have not seen the McCain compliance staff ascending to heaven on a cloud."

The Obama team's disclosures came in response to questions from The Washington Post about the case of Mary T. Biskup, a retired insurance manager from Manchester, Mo., who turned up on Obama's FEC reports as having donated $174,800 to the campaign. Contributors are limited to giving $2,300 for the general election.

Biskup, who had scores of Obama contributions attributed to her, said in an interview that she never donated to the candidate. "That's an error," she said. Moreover, she added, her credit card was never billed for the donations, meaning someone appropriated her name and made the contributions with another card.

When asked whether the campaign takes steps to verify whether a donor's name matches the name on the credit card used to make a payment, Obama's campaign replied in an e-mail: "Name-matching is not a standard check conducted or made available in the credit card processing industry. We believe Visa and MasterCard do not even have the ability to do this.

"Instead, the campaign does a rigorous comprehensive analysis of online contributions on the back end of the transaction to determine whether a contribution is legitimate."

Juan Proaño, whose technology firm handled online contributions for John Edwards's presidential primary campaign, and for John F. Kerry's presidential campaign and the Democratic National Committee in 2004, said it is possible to require donors' names and addresses to match those on their credit card accounts. But, he said, some campaigns are reluctant to impose that extra layer of security.

"Honestly, you want to have the least amount of hurdles in processing contributions quickly," Proaño said.

Sen. John McCain's campaign has also had questionable donations slip through.

Dan Pfeiffer, Obama's communication's director, said that "no organization can fully insulate itself from these problems. The McCain campaign has accepted contributions from fraudulent contributors like 'A for You,' 'Adorable Manabat,' 'The Gun Shop,' and 'Jesus II' and hundreds of anonymous donors."

But R. Rebecca Donatelli, who handles online contributions for the McCain operation and the RNC, said security measures have been standard in the GOP nominee's fundraising efforts throughout the campaign. She said she was "flabbergasted" to learn that the Obama campaign accepts prepaid cards.

"Yes, a gift card would go through the same process as a regular credit card and be subject to our same back-end review," the Obama campaign said in its response to questions about the use of such cards.

Campaign finance lawyers said there is a long history of debate within the FEC about how to ensure that donors use their own credit cards.

Election lawyer Brett Kappel said the FEC has never grappled with the question of cash cards. "The whole system is set up for them to accept the payment, then determine whether it is legal or not. And if it's not, send it back. That's what the statute requires," he said.

from the Politico.com, 2008-Nov-11, by Kenneth P. Vogel:

from the Wall Street Journal, 2008-Nov-12:

Mischief in Minnesota?
Al Franken's recount isn't funny.

You'd think Democrats would be content with last week's electoral rout. But judging from the odd doings in Minnesota, some in their party wouldn't mind adding to their jackpot by stealing a Senate seat for left-wing joker Al Franken.

When Minnesotans woke up last Wednesday, Republican Senator Norm Coleman led Mr. Franken by 725 votes. By that evening, he was ahead by only 477. As of yesterday, Mr. Coleman's margin stood at 206. This lopsided bleeding of Republican votes is passing strange considering that the official recount hasn't even begun.

The vanishing Coleman vote came during a week in which election officials are obliged to double-check their initial results. Minnesota is required to do these audits, and it isn't unusual for officials to report that they transposed a number here or there. In a normal audit, these mistakes could be expected to cut both ways. Instead, nearly every "fix" has gone for Mr. Franken, in some cases under strange circumstances.

For example, there was Friday night's announcement by Minneapolis's director of elections that she'd forgotten to count 32 absentee ballots in her car. The Coleman campaign scrambled to get a county judge to halt the counting of these absentees, since it was impossible to prove their integrity 72 hours after the polls closed. The judge refused on grounds that she lacked jurisdiction.

Up in Two Harbors, another liberal outpost, Mr. Franken picked up an additional 246 votes. In Partridge Township, he racked up another 100. Election officials in both places claim they initially miscommunicated the numbers. Odd, because in the Two Harbors precinct, none of the other contests recorded any changes in their vote totals.

According to conservative statistician John Lott, Mr. Franken's gains so far are 2.5 times the corrections made for Barack Obama in the state, and nearly three times the gains for Democrats across Minnesota Congressional races. Mr. Lott notes that Mr. Franken's "new" votes equal more than all the changes for all the precincts in the entire state for the Presidential, Congressional and statehouse races combined (482 votes).

This entire process is being overseen by Democratic Secretary of State Mark Ritchie, who isn't exactly a nonpartisan observer. One of Mr. Ritchie's financial supporters during his 2006 run for office was a 527 group called the Secretary of State Project, which was co-founded by James Rucker, who came from MoveOn.org. The group says it is devoted to putting Democrats in jobs where they can "protect elections."

Mr. Ritchie is also an ally of the Association of Community Organizations for Reform Now, or Acorn, of fraudulent voter-registration fame. That relationship might explain why prior to the election Mr. Ritchie waved off evidence of thousands of irregularities on Minnesota voter rolls, claiming that accusations of fraud were nothing more than "desperateness" from Republicans.

Mr. Franken and fellow Democrats are already waging a full-scale public pressure campaign to help turn the recount their way. That includes a push to turn what should be a straightforward count of existing legal ballots into a complete do-over -- mau-mauing election officials into accepting tossed ballots. The Franken campaign recently showed up before the Hennepin County canvassing board, demanding that its liberal members count 461 previously rejected ballots. To the board's credit, they unanimously voted no.

The Franken campaign has also been wrapping itself around Barack Obama's popularity to increase its recount potential. Minnesota has a voter intent law, which means that election officials can take a second look at ambiguous ballots. Mr. Franken's people are already arguing that a vote for Mr. Obama certainly indicated a vote for Mr. Franken. This can't possibly be true, however, because nearly every campaign poll showed Mr. Franken lagging Mr. Obama by five to 15 percentage points -- and on Election Day he trailed by 12.2%. Mr. Franken ran a nasty, polarizing campaign, and in any case he was part of a three-man contest.

The Coleman team is demanding the tapes from the voting machines on election night, and that's the least Mr. Ritchie can do. The Secretary of State should also investigate miraculous discoveries like the "forgotten" 32 car ballots. He needs to show voters, the press and the Coleman team that he's running a transparent process that focuses on previously counted votes, rather than changing the rules after the election is over.

With their party only three Senate seats from the 60 needed to break a filibuster (and two still not decided), Democrats have a political incentive to cut corners to steal a seat if they can get away with it. Mr. Franken and his left-wing allies also know that if Mr. Franken couldn't win election in this fabulous Democratic year, then the not-so-funnyman never will. If Minnesota wants to retain its reputation as a state with clean elections, it needs to run an honest recount.

from FoxNews.com, 2009-Mar-18, by Cristina Corbin:

ACORN to Play Role in 2010 Census

The U.S. Census Bureau is working with several national organizations to help recruit 1.4 million workers to produce the country's 2010 census, including one with a history of voter fraud charges: ACORN.

The U.S. Census is supposed to be free of politics, but one group with a history of voter fraud, ACORN, is participating in next year's count, raising concerns about the politicization of the decennial survey.

The Association of Community Organizations for Reform Now signed on as a national partner with the U.S. Census Bureau in February 2009 to assist with the recruitment of the 1.4 million temporary workers needed to go door-to-door to count every person in the United States -- currently believed to be more than 306 million people.

A U.S. Census "sell sheet," an advertisement used to recruit national partners, says partnerships with groups like ACORN "play an important role in making the 2010 Census successful," including by "help[ing] recruit census workers."

The bureau is currently employing help from more than 250 national partners, including TARGET and the National Association for the Advancement of Colored People (NAACP), to assist in the hiring effort.

But ACORN's partnership with the 2010 Census is worrisome to lawmakers who say past allegations of fraud should raise concerns about the organization.

"It's a concern, especially when you look at all the different charges of voter fraud. And it's not just the lawmakers' concern. It should be the concern of every citizen in the country," Rep. Lynn A. Westmoreland, R-Ga., vice ranking member of the subcommittee for the U.S. Census, told FOXNews.com. "We want an enumeration. We don't want to have any false numbers."

ACORN, which claims to be a non-partisan grassroots community organization of low- and moderate-income people, came under fire in 2007 when Washington State filed felony charges against several paid ACORN employees and supervisors for more than 1,700 fraudulent voter registrations. In March 2008, an ACORN worker in Pennsylvania was sentenced for making 29 phony voter registration forms. The group's activities were frequently questioned in the 2008 presidential election.

ACORN spokesman Scott Levenson told FOXNews.com that "ACORN as an organization has not been charged with any crime." He added that fears that the organization will unfairly influence the census are unfounded.

"It will be the Census Bureau that determines the role and scope of its 300 national partners. ACORN is committed to a fair and accurate count," Levenson said.

The census is an official count of the country's population mandated by the U.S. Constitution. It is used to determine distribution of taxpayer money through grants and appropriations and the apportionment of the 435 seats in the House of Representatives. Every U.S. household unit, including those occupied by non-citizens and illegal immigrants, must be counted.

Westmoreland and Rep. Jason Chaffetz, R-Utah, a member of the House census subcommittee, said the panel has held hearings to make sure the penalties for census takers committing fraud are clearly defined.

"I feel fairly confident that the penalties for an individual manipulating the count are pretty severe," Chaffetz said. The penalty for any fraudulent activity can be up to five years in jail.

Westmoreland said he hopes the Census Bureau will maintain its measures to ensure an accurate report.

"I feel comfortable right now with the people at the census department that they're going to put forth their best effort to have a fair count," he said.

The U.S. Census Bureau has refuted any suggestions that ACORN or any other groups will fraudulently and unduly influence the results of the census.

"The Census (Bureau) is a nonpartisan, non-political agency and we're very dedicated to an accurate account," bureau spokesman Stephen Buckner told FOXNews.com. "We have a lot of quality controls in place to keep any kind of systemic error or fraudulent behavior to affect the counts."

Buckner said the bureau received an overwhelming number of qualified applicants -- more than 1 million -- for the 140,000 census taker jobs filled to complete the first phase of the effort. Each applicant, he said, must take a basic skills exam, which includes reading a map and entering data into a handheld computer. Applicants are also subject to an FBI background check, he said.

But Buckner acknowledged that it is difficult to track an applicant's political background.

"I have no way of tracking any of that information," he said. "If somebody comes in to a position with a political agenda and their work exhibits that, there are rules against that," he said.

Buckner stressed the need for organizations like ACORN to assist in the effort, saying that "any group that has a grassroots organization that can help get the word out that we have jobs" is helpful.

In 2000, the U.S. Census Bureau had 140,000 partnerships from "national organizations to local and community organizations to elected officials," he said. "The list is as broad as the phone book."

from the Wall Street Journal, 2009-Feb-10, by John Fund:

Why Obama Wants Control of the Census
Counting citizens is a powerful political tool.

President Obama said in his inaugural address that he planned to "restore science to its rightful place" in government. That's a worthy goal. But statisticians at the Commerce Department didn't think it would mean having the director of next year's Census report directly to the White House rather than to the Commerce secretary, as is customary. "There's only one reason to have that high level of White House involvement," a career professional at the Census Bureau tells me. "And it's called politics, not science."

The decision was made last week after California Rep. Barbara Lee, chair of the Congressional Black Caucus, and Hispanic groups complained to the White House that Judd Gregg, the Republican senator from New Hampshire slated to head Commerce, couldn't be trusted to conduct a complete Census. The National Association of Latino Officials said it had "serious questions about his willingness to ensure that the 2010 Census produces the most accurate possible count."

Anything that threatens the integrity of the Census has profound implications. Not only is it the basis for congressional redistricting, it provides the raw data by which government spending is allocated on everything from roads to schools. The Bureau of Labor Statistics also uses the Census to prepare the economic data that so much of business relies upon. "If the original numbers aren't as hard as possible, the uses they're put to get fuzzier and fuzzier," says Bruce Chapman, who was director of the Census in the 1980s.

Mr. Chapman worries about a revival of the effort led by minority groups after the 2000 Census to adjust the totals for states and cities using statistical sampling and computer models. In 1999, the Supreme Court ruled 5-4 in Department of Commerce v. U.S. House that sampling could not be used to reapportion congressional seats. But it left open the possibility that sampling could be used to redraw political boundaries within the states.

Such a move would prove controversial. "Sampling potentially has the kind of margin of error an opinion poll has and the same subjectivity a voter-intent standard in a recount has," says Mr. Chapman.

Starting in 2000, the Census Bureau conducted three years of studies with the help of many outside statistical experts. According to then Census director Louis Kincannon, the Bureau concluded that "adjustment based on sampling didn't produce improved figures" and could damage Census credibility.

The reason? In theory, statisticians can identify general numbers of people missed in a head count. But it cannot then place those abstract "missing people" into specific neighborhoods, let alone blocks. And anyone could go door to door and find out such people don't exist. There can be other anomalies. "The adjusted numbers told us the head count had overcounted the number of Indians on reservations," Mr. Kincannon told me. "That made no sense."

The problem of counting minorities and the homeless has long been known. Census Bureau statisticians believe that a vigorous hard count, supplemented by adding in the names of actual people missed by head counters but still found in public records, is likely to lead to a far more defensible count than sampling-based adjustment.

The larger debate prompted seven former Census directors -- serving every president from Nixon to George W. Bush -- to sign a letter last year supporting a bill to turn the Census Bureau into an independent agency after the 2010 Census. "It is vitally important that the American public have confidence that the census results have been produced by an independent, non-partisan, apolitical, and scientific Census Bureau," it read.

The directors also noted that "each of us experienced times when we could have made much more timely and thorough responses to Congressional requests and oversight if we had dealt directly with Congress." The bill's chief sponsor is New York Democratic Rep. Carolyn Maloney, who represents Manhattan's Upper East Side.

"The real issue is who directs the Census, the pros or the pols," says Mr. Chapman. "You would think an administration that's thumping its chest about respecting science would show a little respect for scientists in the statistical field." He worries that a Census director reporting to a hyperpartisan such as White House Chief of Staff Rahm Emanuel increases the chances of a presidential order that would override the consensus of statisticians.

The Obama administration is downplaying how closely the White House will oversee the Census Bureau. But Press Secretary Robert Gibbs insists there is "historical precedent" for the Census director to be "working closely with the White House."

It would be nice to know what Sen. Gregg thinks about all this, but he's refusing comment. And that, says Mr. Chapman, the former Census director, is damaging his credibility. "He will look neutered with oversight of the most important function of his department over the next two years shipped over to the West Wing," he says. "If I were him, I wouldn't take the job unless I had that changed."

from City Journal online, 2008-Oct-16, by Daniel J. Flynn:

from the San Diego Union-Tribune, 2008-Oct-18:

A genuine threat
ACORN targets a weakness in democracy

To end the many obstacles Southern states put up before African-American voters as late as the 1960s, Congress worked for decades to make voting much easier. These efforts had a hugely positive effect – until the 1993 “motor voter” law. This measure and some related laws made registration so easy – and so difficult to verify because of a lack of resources and time – that they created nothing less than a structural weakness in American democracy.

This election year, we're seeing a determined, well-funded effort to exploit this weakness, led by ACORN – the Association of Community Organizations for Reform Now.

Using corporate, partisan and taxpayer grants, the nonprofit group has spent $35 million this year to register 1.3 million people in 21 states. But it's highly likely that hundreds of thousands of these registrations are bogus. That's because ACORN relies on canvassers who appear to be paid based on how many signatures they get – an invitation to fraud – and because ACORN as an institution appears to collectively think such fraud is tolerable in the name of “social justice.”

ACORN's voter drive in San Diego County – detailed in yesterday's Union-Tribune – is troubling. Nearly 2,000 of the 26,000 forms it turned in were invalid, much higher than the norm. But compared with what ACORN did elsewhere, its San Diego effort was a model of probity. In Ohio, for example, officials say ACORN gets the primary blame in the registration of 200,000 new voters whose forms appear to be bogus.

Unfortunately, many Democrats depict concern over ACORN as Republican hysteria. They are right that voter fraud has been a tiny problem in recent years. But they ignore a key point: the stunning scale of bogus registrations this time around.

Even if a tiny fraction of these fake voters actually fill out a ballot, they have the potential to tip the presidential vote in battleground states – such as Ohio. Or Pennsylvania, Florida, Michigan, Minnesota, Missouri, Nevada, New Mexico, North Carolina or Wisconsin – all swing states where ACORN has been active.

If we have another very close race, the subsequent court fight could make Florida 2000 seem like a polite tiff.

So, please, spare us the “social justice” rhetoric. What ACORN has done isn't noble. It's reprehensible. We hope that the FBI's investigation into the group is vigorous and thorough.

from the Wall Street Journal, 2008-Oct-30, by John Fund:

An Acorn Whistleblower Testifies in Court
The group's ties to Obama are extensive.

Acorn, the liberal "community organizing" group that claims it will deploy 15,000 get-out-the-vote workers on Election Day, can't stay out of the news.

The FBI is investigating its voter registration efforts in several states, amid allegations that almost a third of the 1.3 million cards it turned in are invalid. And yesterday, a former employee of Acorn testified in a Pennsylvania state court that the group's quality-control efforts were "minimal or nonexistent" and largely window dressing. Anita MonCrief also says that Acorn was given lists of potential donors by several Democratic presidential campaigns, including that of Barack Obama, to troll for contributions.

The Obama campaign denies it "has any ties" to Acorn, but Mr. Obama's ties are extensive. In 1992 he headed a registration effort for Project Vote, an Acorn partner at the time. He did so well that he was made a top trainer for Acorn's Chicago conferences. In 1995, he represented Acorn in a key case upholding the constitutionality of the new Motor Voter Act -- the first law passed by the Clinton administration -- which created the mandated, nationwide postcard voter registration system that Acorn workers are using to flood election offices with bogus registrations.

Ms. MonCrief testified that in November 2007 Project Vote development director Karyn Gillette told her she had direct contact with the Obama campaign and had obtained their donor lists. Ms. MonCrief also testified she was given a spreadsheet to use in cultivating Obama donors who had maxed out on donations to the candidate, but who could contribute to voter registration efforts. Project Vote calls the allegation "absolutely false."

She says that when she had trouble with what appeared to be duplicate names on the list, Ms. Gillette told her she would talk with the Obama campaign and get a better version. Ms. MonCrief has given me copies of the donor lists she says were obtained from other Democratic campaigns, as well as the 2004 DNC donor lists.

In her testimony, Ms. MonCrief says she was upset by Acorn's "Muscle for Money" program, which she said intimidated businesses Acorn opposed into paying "protection" money in the form of grants. Acorn's Brian Kettering says the group only wants to change corporate behavior: "Acorn is proud of its corporate campaigns to stop abuses of working families."

Ms. MonCrief, 29, never expected to testify in a case brought by the state's Republican Party seeking the local Acorn affiliate's voter registration lists. An idealistic graduate of the University of Alabama, she joined Project Vote in 2005 because she thought it was empowering poor people. A strategic consultant for Acorn and a development associate with its Project Vote voter registration affiliate, Ms. MonCrief sat in on policy-making meetings with the national staff. She was fired early this year over personal expenses she had put on the group's credit card.

She says she became disillusioned because she saw that Acorn was run as the personal fiefdom of Wade Rathke, who founded the group in 1970 and ran it until he stepped down to take over its international operations this summer. Mr. Rathke's departure as head of Acorn came after revelations he'd employed his brother Dale for a decade while keeping from almost all of Acorn's board members the fact that Dale had embezzled over $1 million from the group a decade ago. (The embezzlement was confirmed to me by an Acorn official.)

"Anyone who questioned what was going on was viewed as the enemy," Ms. MonCrief told me. "Just like the mob, no one leaves Acorn happily." She believes the organization does some good but hopes its current leadership is replaced. She may not be alone.

Last August two of Acorn's eight dissident board members, Marcel Reed and Karen Inman, filed suit demanding access to financial records of Citizens Consulting Inc., the umbrella group through which most of Acorn's money flows. Ms. Inman told a news conference this month Mr. Rathke still exercises power over CCI and Acorn against the board's wishes. Bertha Lewis, the interim head of Acorn, told me Mr. Rathke has no ties to Acorn and that the dissident board members were "obsessed" and "confused."

According to public records, the IRS filed three tax liens totaling almost $1 million against Acorn this spring. Also this spring, CCI was paid $832,000 by the Obama campaign for get-out-the-vote efforts in key primary states. In filings with the Federal Election Commission, the Obama campaign listed the payments as "staging, sound, lighting," only correcting the filings after the Pittsburgh Tribune-Review revealed their true nature.

"Acorn needs a full forensic audit," Ms. MonCrief says, though she doesn't think that's likely. "Everyone wants to paper things over until later," she says. "But it may be too late to reform Acorn then." She strongly supports Barack Obama and hopes his allies can be helpful in cleaning up the group "after the heat of the election is gone."

Acorn's Mr. Kettering says the GOP lawsuit "is designed to suppress legitimate voters," and he says Ms. MonCrief isn't credible, given that she was fired for cause. Ms. MonCrief admits that she left after she began paying back some $3,000 in personal expenses she charged on an Acorn credit card. "I was very sorry, and I was paying it back," she says, but "suddenly Acorn decided that . . . I had to go. Since then I have gotten warnings to 'back off' from people at Acorn."

Acorn insists it operates with strict quality controls, turning in, as required by law, all registration forms "even if the name on them was Donald Duck," as Wade Rathke told me two years ago. Acorn whistleblowers tell a different story.

"There's no quality control on purpose, no checks and balances," says Nate Toler, who worked until 2006 as the head organizer of an Acorn campaign against Wal-Mart in California. And Ms. MonCrief says it is longstanding practice to blame bogus registrations on lower-level employees who then often face criminal charges, a practice she says Acorn internally calls "throwing folks under the bus."

Gregory Hall, a former Acorn employee, says he was told on his very first day in 2006 to engage in deceptive fund-raising tactics. Mr. Hall has founded a group called Speaking Truth to Power to push for a full airing of Acorn's problems "so the group can heal itself from within."

To date, Mr. Obama has declined to criticize Acorn, telling reporters this month he is happy with his own get-out-the-vote efforts and that "we don't need Acorn's help." That may be true. But there is no denying his ties with Acorn helped turbocharge his political career.

from National Review Online, 2008-Oct-21, by Andrew C. McCarthy:

from the Wall Street Journal, 2008-Aug-14, p.A12:

The ABA Plots a Judicial Coup

Some bad ideas never seem to die, especially in the hands of a crafty attorney. That's the story now playing out at the American Bar Association, which voted at its annual meeting this week to endorse a version of "merit selection" for federal judges. What we have here is the latest lawyer-led attempt to strip judicial selection from future Presidents.

According to the proposal, future federal judges would be selected not by an elected President, but with the aid of home-state Senators and a bipartisan commission that would provide a list of recommended nominees for judicial vacancies. The White House would then select a candidate from the preapproved list. The commission would be created by the two Senators from each state to offer up consensus choices for federal nominees.

The point of all this, says the ABA's incoming President Thomas Wells, is to avoid "really rancorous debates" in the confirmation process and make sure vacancies aren't left to languish indefinitely. The bar association has also enlisted former Supreme Court Justice Sandra Day O'Connor to push for an expansion of merit selection at the state level as an alternative to judicial elections -- which the bar loathes because voters can be so darn unpredictable.

We admire Mr. Wells's high-mindedness. But surely he must have heard that merit selection merely takes the partisan politics out of the public eye and into backrooms stocked with political insiders. In states that have adopted the ostensibly nonpartisan system, it has given disproportionate influence to the state trial bars that control selection commissions and have steadily marched state courts to the left.

That may not be Mr. Wells's intention, but it's no accident that outfits like the George Soros-bankrolled Justice at Stake have lobbied for precisely this kind of "merit" selection. The group cheered the ABA proposal this week, and pledged its support. "Judges are not politicians in robes, nor are they prizes to be won by aggressive special interests," executive director Bert Brandenburg remarked. Unless, of course, the "special interest" is the lawyers' guild. Then it's all just one happy meritocracy.

And the chief arbiter of what qualifies as "merit" soon becomes the lawyers' club, especially the trial bar. The ABA resolution is explicit on the point that the commissions should be composed of "lawyers and other leaders." Lawyers might even deserve such pride of place if the judges they chose stuck to judging. But with so many modern judges bent on writing law by fiat, doctors, firemen and used car salesmen are just as qualified to opine on judicial philosophy. In fact, we'd prefer the used car salesmen.

All of which explains why states that use some version of merit selection are trying either to reform the system or ditch it altogether. This spring, Tennessee allowed its merit selection plan to expire after abuses that drew the ire of even Democratic Governor Phil Bredesen. In 2006, he said the nominating commission was "trying to force people down my throat."

In Missouri, Governor Matt Blunt last year considered rejecting a slate of nominees to protest a commission that had habitually done the trial bar's bidding. In Kansas, legislation to dump its version of the so-called Missouri Plan also got momentum in the last legislative session, and voters in Johnson County will consider whether to retain the Missouri Plan or move to direct elections in November.

Taking all this to the federal level has the same problems and then some. The ABA proposal would institutionalize the role of home-state Senators as Presidential equals in nominating federal judges. One source of judicial gridlock has been the Senate's habit of "blue-slipping," a practice by which a nominee's two home-state Senators must both bless a nomination for it to proceed. That gives Arlen Specter or Barbara Boxer individual veto power, which is well beyond what the Constitution intended for Senate advice and consent.

The ABA's own judicial review panel, which rates Presidential nominees, has already proven it can't be trusted. Loaded with liberals who hid behind the bar's professional sheen, four members of the panel gave Judge Robert Bork a rating of "not qualified," though he was as well qualified as any nominee in American history. A couple of panel members also tried to torpedo Clarence Thomas by saying he was "unqualified" while the rest went with a lukewarm "qualified." Those episodes caused Senate Republicans to downgrade the ABA panel's status as an official vetting body.

The recent trend toward nominees from "compromise" lists has already thwarted the confirmation of other excellent judges whose only faults are belonging to the Federalist Society or believing in original Constitutional principles. You can be certain that the next Antonin Scalia would be deemed too controversial, while David Souter would qualify as the ultimate "consensus" choice.

A better option is to keep the judicial nominating process democratically accountable and transparent. Those who don't like the judges a President appoints can take their preferences out at the ballot box.

from the Wall Street Journal, 2008-Sep-16:

The Tort Bar's Comeback

As voters mull the stakes in this year's election, here's an issue that ought to ring alarms in the ears of serious people: tort reform. After 20 years of state and federal efforts to reform a runaway legal system, the trial bar is reviving the monster.

At the federal level, lawyers and law firms invested in 2006 more than $85 million to get pro-lawsuit Democrats elected. Congress's new leadership has begun a political repayment plan -- packing legislation with provisions to increase the number and size of lawsuits. So far, this effort has been largely stymied by President Bush's veto threat. The tort bar sees 2008 as the real prize; it has already thrown $107 million toward increasing Democratic majorities.

The trial barons are making more progress at the state level, as described in a report by the American Tort Reform Association. States had been making progress: New laws cleaned up venue requirements, reformed punitive and noneconomic damages, and enacted medical malpractice reform. So-called "judicial hellholes" like Texas and Mississippi have seen insurers return and premiums fall.

The trial bar is fighting back, with success. In last year's legislative session, Michigan lawmakers proposed repealing safeguards for prescription drug providers; Maryland legislators wanted to revoke medical liability reforms; and Florida's legislature entertained the nullification of its joint and several liability reforms. The trial bar's big coup was in Colorado, where Democratic Governor Bill Ritter signed a law increasing previous limits on noneconomic damages.

Lawyers have also been laboring to create opportunities for more lawsuits, more money and more time to sue. Last year, Alabama saw legislation that would allow a tort claim to continue even after a plaintiff had died, while California proposed authorizing lawsuits for any violation of privacy. New Mexico and New Jersey passed laws authorizing citizens to file "false claims" suits on behalf of the state -- in effect turning private individuals into state bounty hunters.

Four states -- Colorado, Washington, Illinois and Texas -- considered proposals to increase the size of awards plaintiffs could claim, and with it attorneys' contingency fees. The tort bar pushed bills across the country to expand "consumer protection" damages and in at least three states to allow plaintiffs to claim damages for "emotional harm" when their pets are injured. In Maryland and Oregon, lawyers successfully shepherded new laws to extend the time in which plaintiffs could file lawsuits.

Plenty of legislatures remain wary of walking back down the highway of ruinous lawsuits, while many Governors say they'll veto this legislation. Still, the lawsuit industry is counting on discontent this fall to help flip a few more legislatures and governorships to pro-tort majorities, laying the groundwork for their proposals to become law. Tort reformers will have to push back.

from the Wall Street Journal, 2008-Oct-1:

Biden & Partners
How they're making Delaware a mecca for the tort bar.

Joe Biden debates Sarah Palin tomorrow night, so expect to hear a lot about how he and Barack Obama will change Washington. Moderator Gwen Ifill might want to ask the Democratic Vice Presidential nominee how that message squares with the story of Mr. Biden, his son, and the lawsuit lobby.

A remarkable political fact of Mr. Biden's career is that his top campaign contributor is SimmonsCooper, a law firm in Madison County, Illinois, of all places. Aficionados of tort law will understand. SimmonsCooper is a big asbestos player, and Madison County was until recently one of America's meccas for jackpot justice. But the story gets better: Mr. Biden has been helping the tort bar turn his home state of Delaware into a statewide Madison County.

SimmonsCooper made hundreds of millions of dollars on asbestos cases in Madison County, but that started to change in 2004. The business community helped to elect conservative Lloyd Karmeier to the Illinois Supreme Court. Madison County Circuit Judge Daniel Stack also took over the asbestos docket, was determined to clean house, and began dismissing suits filed by residents outside his jurisdiction.

SimmonsCooper and other firms started shopping for a new legal goldmine. And where better than Delaware? Many companies incorporate there, which means a list of defendants usually includes a Delaware target. Beginning in mid-2005, SimmonsCooper began transferring its suits to Bidenland.

The trial bar's strategy has been to overwhelm Delaware's once-sensible legal system, taking advantage of rules that pressure companies to settle. In the 22 months following SimmonsCooper's first asbestos filing in Delaware, the state was hit with 412 suits, primarily from SimmonsCooper and fellow asbestos giant Baron & Budd.

According to the Madison County Record -- a legal journal that has doggedly followed this story -- clerks in Wilmington were "working nights and weekends to keep up" with the filings. The trial lawyers drew sympathetic judges that have already overseen big verdicts against defendants, primarily Detroit auto makers. Plaintiffs have obtained certain procedures that raise the costs of defense, and restrict defendants' ability to take discovery.

To keep the jackpots coming, the tort bar has focused on reshaping Delaware's political and judicial landscape. SimmonsCooper knows all about this, having spent a fortune on judicial and county board elections in Madison County. The trial bar poured money into the 2004 re-election campaign of Democratic Governor Ruth Ann Minner, who happens to control judicial appointments in Delaware. Some 24 national asbestos and plaintiffs attorneys -- including Dickie Scruggs, since convicted of bribery -- contributed the legal maximum in the run-up to Ms. Minner's victory. SimmonsCooper has also contributed nearly $35,000 to Jack Markell, the Democrat running to replace Ms. Minner this fall.

Also up for special attention was Beau Biden, son of Senator Biden. SimmonsCooper needed a local firm to file its Delaware suits, and it settled on Bifferato, Gentilotti and Biden, where Beau was a partner. This gave young Beau a share of the firm's asbestos winnings. Beau Biden was also widely known to have political ambitions, and SimmonsCooper donated $35,000 to help Beau get elected state attorney general in 2006. Meanwhile, SimmonsCooper employees have funneled $200,000 in campaign donations to the senior Biden.

"Delaware is fast becoming asbestos lawsuit central," says Steve Hantler, president of the American Justice Partnership Foundation, and a former Chrysler assistant general counsel. "A tsunami of lawsuits being filed by the SimmonsCooper firm, along with the flow of campaign dollars to Delaware politicians is quite the troubling coincidence."

Mr. Biden is one of the tort bar's staunchest allies in Congress, blocking reform at every opportunity while trying to defeat conservative judicial nominees. His quid pro quo with SimmonsCooper in Delaware helps explain why asbestos suits continue to weigh down the courts even after tens of thousands of cases have been shown to be invented. The "change" lawyers will believe in if Mr. Biden makes it to the White House is cold, hard cash.

from the Associated Press, 2008-Oct-3, by Michael Kunzelman:

Judge: FEMA not immune from toxic trailer suits

NEW ORLEANS — The federal government is not immune from lawsuits claiming many Gulf Coast hurricane victims were exposed to potentially dangerous fumes while living in trailers it provided, a federal judge ruled Friday.

U.S. District Judge Kurt Engelhardt cited evidence that the Federal Emergency Management Agency delayed investigating complaints about formaldehyde levels in its trailers because it might be held legally responsible. The preservative can cause breathing problems and is classified as a carcinogen.

Engelhardt said FEMA learned of the formaldehyde concerns around March 2006, several months after Hurricane Katrina struck on Aug. 29, 2005, but responded by "sticking their heads in the sand" rather than ordering air-quality tests.

"Indeed, the evidence shows that FEMA initially ignored the potential formaldehyde problem and neglected to conduct testing in fear that such testing would 'imply FEMA's ownership of the issue,'" the judge wrote in his 48-page ruling.

During a hearing in July, a government attorney argued FEMA's decisions in responding to a disaster, including its use of travel trailers after Katrina, are legally protected from "judicial second-guessing."

Engelhardt, however, said ignoring potential health problems associated with FEMA trailers wouldn't be a "permissible exercise of policy judgment."

Lawyers for victims of hurricanes Katrina and Rita also accused FEMA of negligence for using trailers as long-term shelter after the storms, but Engelhardt said the government is shielded from liability for that decision.

"Taking into account the urgency of the situation following what has been called the most destructive natural disaster in our nation's history," the judge wrote, "this court declines to partake in 'judicial second-guessing' of FEMA's discretionary decision" to use the trailers.

Roughly 800 storm victims are named as plaintiffs in the cases before Engelhardt, but attorneys want the judge to certify a class action suit on behalf of thousands of people who lived in FEMA trailers after the 2005 hurricanes. Engelhardt hasn't ruled on that request yet. The plaintiffs are seeking unspecified damages.

Tony Buzbee, one of the lead plaintiffs lawyers in the case, said Friday's ruling is "more than I hoped for."

"FEMA is still in the mix," he said. "It's a window. We don't know how large the window is."

A FEMA spokeswoman said she couldn't immediately comment.

The lawsuits also accuse trailer makers of providing FEMA with shoddily built units in a rush to meet the agency's unprecedented demand for emergency housing.

Government scientists tested the air quality in hundreds of occupied FEMA trailers and mobile homes. The test results, announced earlier this year, showed formaldehyde levels that were, on average, about five times higher than what people are exposed to in most modern homes.

from the Wall Street Journal's Political Diary, 2008-Sep-23, by Holman W. Jenkins Jr.:

Sometimes a Cigar Isn't a Cigar

Montana Gov. Brian Schweitzer has since said he was joshing, but that's almost beside the point. Speaking before an audience in July, the governor detailed how he supposedly used his official position to "turn some dials" on Election Day to ensure the victory of Democrat Jon Tester over incumbent Republican Conrad Burns in the 2006 U.S. Senate race. Those "dials" included harassing GOP poll watchers on Indian reservations, timing the release of vote tallies from key precincts, and pressing the Associated Press to call the race for Mr. Tester while votes were still being counted. Mr. Tester won by fewer than 3500 votes

Mr. Schweitzer now says he was "just joking around and making it colorful" for his audience -- the American Association for Justice, the banner the nation's trial lawyers now operate under. Ho, ho. His spokeswoman later removed a link to a transcript from Mr. Schweitzer's entry on Wikipedia, the online encyclopedia.

Whatever the satire quotient, one thing the venue and Mr. Schweitzer's choice of applause lines makes clear: The trial lawyers are still the trial lawyers. He had good reason to think a group nominally devoted to "justice" would enjoy hearing about abuse of official power to cement Democratic control of the Senate, which the trial bar uses to block tort reform and protect its livelihood. A previous head of the association, attorney Fred Baron, once complained in a speech about a Wall Street Journal editorial that alleged "the plaintiffs bar is all but running the Senate." He didn't like the words "all but."

Now you know why important debates such as limits on electronic eavesdropping devolve into frivolities over whether phone companies can be sued for cooperating with the government. That's the agenda of the trial lawyers infecting everything the senate does.

Montana Democratic Attorney General Mike McGrath has accepted Mr. Schweitzer's explanation that he was joking and has declined to investigate his claims, over objections from Republicans, including Mr. Schweitzer's Republican challenger this fall, state Sen. Roy Brown.

from the Wall Street Journal, 2008-Jul-1, by Melanie Phillips:

Why the Brits Are Setting Terrorists Free

London

It turns out that the U.S., whose Supreme Court last month ruled that non-American prisoners held at Guantanamo Bay may challenge their detention, isn't the only country where judges are hampering the war on terror. Many people here are rubbing their eyes at the fact that Britain is letting out of jail some of al Qaeda's most dangerous members. In June, a British court released the notorious Islamist preacher Abu Qatada, who had spent the previous three years in jail pending deportation to Jordan to stand trial on terrorism charges.

Now there are media reports that the U.K. government is considering releasing an even more dangerous terrorist this week, rather than deporting him to his native Algeria. The man known only as "U" (to protect his identity) was a close contact of Abu Qatada and allegedly was involved in planning terror operations in Los Angeles and Strasbourg, France.

Neither Abu Qatada nor "U" has been prosecuted in Britain, because U.K. authorities possess no evidence to charge these men with plotting terrorist acts. Abu Qatada could have faced charges for lesser offenses under Britain's terrorism law. But since these would have imposed only short prison sentences, the government considered it preferable to deport him to stand trial for more serious crimes in his home country.

Yet in both cases, the English courts have ruled that deporting these men would breach their human rights. Given that they were only being held pending deportation, their subsequent release became inevitable. These cases are but the latest examples of the way in which the English judiciary appears to be bending over backward to thwart the fight against terrorism.

"U" is considered so dangerous that his lawyers and the security service are still arguing over the unprecedented restrictions proposed for his bail, including permanent house arrest. Abu Qatada is free on the conditions that he remains at home for 22 hours every day, doesn't use a cell phone, and doesn't visit a mosque.

He now lives in a house in a London suburb, to the undoubted discomfiture of his neighbors. Dozens of police officers are required to ensure that he doesn't violate his bail conditions, at an estimated annual cost of £500,000 ($996,274). Then there are his wife and five children who have to be supported on welfare benefits, as they have been during the years of his incarceration, at a further cost of some £45,000 per year – not to mention an extra £8,000 annually in disability benefits for Abu Qatada on account of his "bad back."

Britain's welfare "rights" culture only accentuates the surrealism of this situation. How is it that people as dangerous as these two men are to be maintained at vast expense by the British taxpayer rather than being deported? Puzzlement surely turns into astonishment when one learns the grounds on which the Appeal Court decided not to throw Abu Qatada out of the country.

The judges were worried that, at his pending trial in Jordan, the court there might use evidence from another witness that had been obtained by torturing him. This concern persisted despite the Jordanians' assurances that they would not do so, since this was against their own law.

Prohibiting torture is one thing. But extending such concerns to a witness in a case in which Britain was not even involved, thus preventing it from throwing out someone who endangered its own interests, is beyond perverse.

No sooner had Abu Qatada been released than yet another set of English judges in a terrorist case arrived at an even more bizarre conclusion. Led by England's top judge, the Lord Chief Justice Lord Phillips, the Appeal Court quashed the conviction of the "lyrical terrorist" Samina Malik.

Ms. Malik had been found guilty of collecting "information of a kind likely to be useful to a person committing or preparing an act of terrorism" after a jury heard that she possessed jihadi literature including "The Terrorists' Handbook" and "The Mujahideen Poisons Handbook," as well as operators' manuals for such firearms as an antitank weapon. She is known as the "lyrical terrorist" because she also wrote jihadi poetry.

The judges reversed her conviction, though, because they decided that information "useful" to a terrorist had to offer practical assistance. While the terrorist manuals in her possession plainly did just that, the judges decided that other jihadi literature did not, and so it was not unlawful to possess such literature. They then concluded that the jury may have been "confused" and wrongly convicted her for possessing the jihadi literature – as opposed to convicting her for possessing the terrorism manuals that did constitute an offense.

The debacles over Abu Qatada and "U" have occurred because England's overwhelmingly liberal senior judges have interpreted the prohibition of torture under the European Convention on Human Rights to include deportation to any country where ill-treatment might be practiced. This has made it all but impossible to deport foreign terrorist suspects, since the Muslim countries they usually come from are hardly scrupulous in observing the rule of law.

It was surely never the intention of the framers of the Convention to force a country to harbor individuals who posed a danger to the national interest. Yet that is what the English judiciary has brought about. These judgments are a clear signal to al Qaeda that Britain remains the safest and most hospitable place on Earth in which to ply their appalling trade.

The Samina Malik case, meanwhile, showed once again that the judges seem unable to grasp the part played in Islamic terrorism of literature which incites hatred and violence toward the West.

The undercurrent to all this is the belief among many members of the British establishment that the threat of Islamic terrorism has been overstated. This notion flies in the face of a statement last November by the head of MI5, Jonathan Evans, that there were 2,000 known Islamic terrorists in Britain.

There is much emotional talk about defending Britain's ancient rights and liberties, whose erosion in the ostensible cause of fighting terror would, it is said, hand victory to al Qaeda. But this view does not chime with British public opinion – which if anything wants the government to take more draconian measures against terrorism. That's why Prime Minister Gordon Brown decided to extend the current 28-day limit for detaining terrorist suspects before charge to 42 days, a measure which the House of Commons recently passed.

So does this mean that the establishment mood on counterterrorism is toughening up? Not a bit. Mr. Brown forced through the 42-days law only with the last-minute help of the handful of Northern Irish Ulster Unionist MPs. Not only his own Labour backbenchers but the Conservative Party and most of the political and intellectual class are solidly against the measure, which is likely to be thrown out when it reaches the upper house of Parliament this month.

It is surely no accident that this failure to grasp the true dimensions of the Islamic terrorist threat is so pronounced among the British elite. For these are the people whose education and careers embody the key attribute of Britain's liberal society – the belief that the world is governed by rational agents acting in their rational self-interest.

The British ruling class just doesn't get religious fanaticism. That is why its judges and politicians are finding it so difficult to fight Islamic terror. Not just Britain but the whole world is less safe as a result.

Ms. Phillips is a columnist for the Daily Mail and author of "Londonistan" (Encounter Books, 2005).

from City Journal online, 2008-Oct-20, by Theodore Dalrymple:

Protect the Burglars of Bromsgrove!
A British town puts thieves' safety first.

In Britain, there is a long and honorable tradition of local councils' leasing small plots of land, called allotments, to people without gardens of their own who may grow fruit, vegetables, and flowers upon them. The tenants also receive small sheds on their plots for storing tools, fertilizers, garden furniture, and so forth. Unfortunately, another, less honorable, tradition has recently developed: stealing from allotments. Seventeen of the 50 allotments in Bromsgrove, Worcestershire have been robbed recently, for example, and the shed of one tenant, Bill Malcolm, has been broken into three times.

So Malcolm put a barbed-wire fence around his patch of land to discourage further depredations. The fence, however, did not meet with the approval of the local council, which worried about the risk of injury—to future burglars. Injured burglars might then sue the council. Another council, in Bristol, told allotment holders not to lock their sheds, in case burglars damaged them while breaking into them.

Needless to say, I am replacing the glass in the windows of my house with tissue paper, so that burglars—poor lambs—will not cut themselves while breaking and entering.

Theodore Dalrymple, a physician, is a contributing editor of City Journal and the Dietrich Weismann Fellow at the Manhattan Institute.

from the American Spectator, 2008-Sep-19, by George H. Wittman:

from the Associated Press, 2008-Oct-11, by Tracie Cone:

Mexican marijuana cartels sully US forests, parks

PORTERVILLE, Calif. — National forests and parks — long popular with Mexican marijuana-growing cartels — have become home to some of the most polluted pockets of wilderness in America because of the toxic chemicals needed to eke lucrative harvests from rocky mountainsides, federal officials said.

The grow sites have taken hold from the West Coast's Cascade Mountains, as well as on federal lands in Kentucky, Tennessee and West Virginia.

Seven hundred grow sites were discovered on U.S. Forest Service land in California alone in 2007 and 2008 — and authorities say the 1,800-square-mile Sequoia National Forest is the hardest hit.

Weed and bug sprays, some long banned in the U.S., have been smuggled to the marijuana farms. Plant growth hormones have been dumped into streams, and the water has then been diverted for miles in PVC pipes.

Rat poison has been sprinkled over the landscape to keep animals away from tender plants. And many sites are strewn with the carcasses of deer and bears poached by workers during the five-month growing season that is now ending.

"What's going on on public lands is a crisis at every level," said Forest Service agent Ron Pugh. "These are America's most precious resources, and they are being devastated by an unprecedented commercial enterprise conducted by armed foreign nationals. It is a huge mess."

The first documented marijuana cartels were discovered in Sequoia National Park in 1998. Then, officials say, tighter border controls after Sept. 11, 2001, forced industrial-scale growers to move their operations into the United States.

Millions of dollars are spent every year to find and uproot marijuana-growing operations on state and federal lands, but federal officials say no money is budgeted to clean up the environmental mess left behind after helicopters carry off the plants. They are encouraged that Sen. Dianne Feinstein, D-Calif., who last year secured funding for eradication, has inquired about the pollution problems.

In the meantime, the only cleanup is done by volunteers. On Tuesday, the nonprofit High Sierra Trail Crew, founded to improve access to public lands, plans to take 30 people deep into the Sequoia National Forest to carry out miles of drip irrigation pipe, tons of human garbage, volatile propane canisters, and bags and bottles of herbicides and pesticides.

"If the people of California knew what was going on out there, they'd be up in arms about this," said Shane Krogen, the nonprofit's executive director. "Helicopters full of dope are like body counts in the Vietnam War. What does it really mean?"

Last year, law enforcement agents uprooted nearly five million plants in California, nearly a half million in Kentucky and 276,000 in Washington state as the development of hybrid plants has expanded the range of climates marijuana can tolerate.

"People light up a joint, and they have no idea the amount of environmental damage associated with it," said Cicely Muldoon, deputy regional director of the Pacific West Region of the National Park Service.

As of Sept. 2, more than 2.2 million plants had been uprooted statewide. The largest single bust in the nation this year netted 482,000 plants in the remote Sierra of Tulare County, the forest service said.

Some popular parks also have suffered damage. In 2007, rangers found more than 20,000 plants in Yosemite National Park and 43,000 plants in Sequoia Kings Canyon National Park, where 159 grow sites have been discovered over the past 10 years.

Agent Patrick Foy of the California Department of Fish and Game estimated that 1.5 pounds of fertilizers and pesticides is used for every 11.5 plants.

"I've seen the pesticide residue on the plants," Foy said. "You ain't just smoking pot, bud. You're smoking some heavy-duty pesticides from Mexico."

Scott Wanek, the western regional chief ranger for the National Park Service, said he believes the eradication efforts have touched only a small portion of the marijuana farms and that the environmental impact is much greater than anyone knows.

"Think about Sequoia," Wanek said. "The impact goes well beyond the acreage planted. They create huge networks of trail systems, and the chemicals that get into watersheds are potentially very far-reaching — all the way to drinking water for the downstream communities. We are trying to study that now."

from the Associated Press via the Seattle Times, 2008-Aug-3:

UI researcher faces deportation back to Poland

A University of Idaho researcher who worked on bioterrorism defenses faces deportation to Poland after being denied residency by U.S. immigration officials. Katarzyna Dziewanowska...

MOSCOW, Idaho — A University of Idaho researcher who worked on bioterrorism defenses faces deportation to Poland after being denied residency by U.S. immigration officials.

Katarzyna Dziewanowska was recruited by the university and worked 14 years but was told to stop in the spring of 2005 because of the immigration mess.

"I never tried to break the law," Dziewanowska, 64, told The Spokesman-Review of Spokane, Wash. "I tried to play according to the rules."

At the same time immigration officials were denying her authorization to work, Dziewanowska held an FBI clearance for research to counter possible terrorist attacks with the plague.

"She's a damn good scientist," said Patricia Hartzell, a biology and biochemistry professor and former dean of Dziewanowska's academic department. "She's really good."

Her husband, Witold Ferens, a University of Idaho researcher studying ways to fight diseases such as AIDS, can no longer receive grants because the couple are on a family application to remain in the U.S.

"These are the kind of people you want to kick out of the country?" said Michael Cherasia, Dziewanowska's former lawyer. "Somebody isn't thinking. They had the discretion to approve her petition, and they refused."

Immigration officials say Dziewanowska' application for permanent residency was rejected because she worked eight months without authorization in late 2004 and early 2005.

Dziewanowska arrived at the university in 1994 and worked on a visa for a few years, then was granted outstanding researcher status as a step toward applying for permanent residency, which she did in 2003 with the help of the university.

While immigration officials considered her application, she was required to apply annually for temporary work permits called employment authorization documents.

In the fall of 2004 her application for a permit was rejected because she had submitted a profile photo rather than a face-forward one as required under new rules. She sent a face-forward photo, but that was rejected because officials said it included glare on one lens of her glasses.

In a letter in September 2004, immigration officials wrote, "There is no appeal to this decision."

By then, her previous work permit had expired.

Dziewanowska said the university's human rights office told her she could keep working during a 240-day grace period, a claim The Spokesman-Review found was supported by Cherasia and e-mail records.

During that period Dziewanowska worked on finding ways to protect against humans from bioterrorist attacks with the plague, but the university's advice that she could keep working turned out to be incorrect.

Immigrations officials then told her that, because she had worked illegally for eight months without a work permit, her application for permanent residency was being rejected.

In April 2005 the university told her to stop working.

Immigration officials say it doesn't matter who told her she could keep working without a permit because it's the individual's responsibility to be sure to follow the rules.

"They eventually put me in a situation where you start to feel like a criminal when you don't have any intention to break the law," said Dziewanowska.

Sharon Rummery, a spokeswoman for the U.S. Citizenship and Immigration Services in San Francisco, said she could not discuss the specifics of Dziewanowska's case.

"We make all the information about immigration laws very accessible," Rummery said.

Dziewanowska's son is also caught up in the situation and can't apply for a free tuition program through his employer.

The university would not discuss Dziewanowska's case but issued a statement: "In instances where an application for permanent residency has been filed, the university must confirm employment and other information. However, we do not and cannot make immigration-related decisions for or on behalf of individuals and their immigration status."

Dziewanowska's next step is to be ordered to appear before an immigration judge. It's unclear when that could happen.

Meanwhile, a year away from retirement, she's not allowed to work, and she and her husband have bought a new home in Moscow.

"On the immigration side, there's no room for good-faith mistakes in the law, and this is one of them," said her lawyer, Maria Andrade of Boise. "It's a sad case. It's a very sad case."

from the Boston Globe, 2008-Oct-8, by David Abel:

Off-duty officers jeer, impede civilian flaggers
Policy begins on traffic details

WOBURN - As dozens of cars backed up at both ends of the road project, many of the 50 off-duty police officers lining Lexington Street yesterday began shouting at the man with the neon vest and stop/slow sign in his hand.

Arguing that allowing civilians to direct traffic endangers the public and holding signs that read "Governor Patrick Doesn't Care About Safety," they crowded around the flagger, called him names such as "scab" and "pathetic," and did their best to distract him from his work.

"I hope you sleep at night," Stoneham Patrolman Joe Ponzo yelled at the flaggers, the first to be used on a road project under new regulations. "You should be ashamed of yourself - you're union. This is a travesty."

Despite the continued protests, highway officials said they would not let police officers interfere with the flaggers' work - and they vowed to ensure patrolmen don't block future work sites.

Highway Commissioner Luisa Paiewonsky called some of the police officers' actions "unlawful" and said the state was considering how to respond.

"It's too early to speculate on what steps we're going to take," she said at an Arlington press conference. "Walking by the dozen into an active work zone is not OK, not safe, and when people are protesting in support of public safety and creating an unsafe condition, we have to take action."

The off-duty officers from Arlington, Medford, Everett, Stoneham, and Woburn assembled on the two-lane road to protest the governor's new rules, which curb police details that often earn officers $40 an hour.

The rules were first put into use Friday, when the Massachusetts Water Resources Authorities chose not to have police details at work sites in Revere and Everett. Police union members, angry over what they say was unfair treatment during the administration's drafting of the rules, protested at the work sites and forced the sewer workers there to abandon the projects.

Yesterday, the state brought in flaggers for the first time to direct traffic at seven sites.

The new regulations, which the administration estimates will save the state between $5.7 million and $7.2 million a year, will put civilian flaggers on nearly all state roads where the speed limit is below 45 miles per hour as well as low-traffic roads where the speed limit is higher. Civilians will also be used when barriers block construction sites on high-speed, high-traffic roads. Some projects, such as those on Friday, can go forward without anyone directing traffic.

Police officers, who can earn tens of thousands of dollars in extra pay from details, will continue to direct traffic on busy roads with speed limits of 45 miles per hour or more.

Paiewonsky called the flaggers' work an "appropriate balance between our number one objective of safety of our employees, drivers, all users of the road, while respecting the need to spend our tax dollars more efficiently."

At one point yesterday morning, the officers' commotion in Woburn forced the state crew to halt its work cleaning the catch basins along Lexington Street.

Woburn Police Chief Philip Mahoney was at the scene and repeatedly warned the off-duty officers to stay behind the white line at the edge of the road. He also ordered several of the officers to remove their vehicles, which had been illegally parked along the side of the street.

"This is a safety issue," Mahoney told the officers.

Shortly afterward, one of the off-duty officers drove his car the wrong way between traffic cones, saying the civilian flagger sent him in the wrong direction.

Mahoney later called uniformed Woburn officers to help restore order at the scene.

The chief was annoyed to be refereeing at the scene. "This is a total waste of my time," he said.

But Mahoney said he sympathized with his officers.

"They're absolutely within their right to protest," he said. "The governor violated his promise to these officers - and they are better trained than flaggers, better equipped, and time and time again, they have made serious arrests while on details."

Paiewonsky said the highway department at one point in the morning pulled its workers to the side of the road and called on Woburn officials to allow them to do their work.

"The fact that there were dozens of police officials walking back and forth in a work zone, interfering with the ability of lawful work, that's a real problem," she said, adding work eventually resumed after the officers had been cleared.

The department has trained 122 department employees in flagging and 14 employees to serve as flagging trainers. The flaggers - most of whom will be paid $15 to $19 an hour - receive about five hours of training before the department sends them to a work zone. Paiewonsky said the flaggers will begin appearing at work sites throughout the state over the next few weeks. "Most of them had already had work-zone training," she said.

On Lexington Street, the protesting officers said they would continue to fight the administration.

One officer shouted: "All it will take to change the policy is one person killed." Others mocked the flagger, who would not give his name. "He must have a master's degree in coneology," one officer joked. Another said: "You're not supposed to be on the phone," as the flagger communicated with another flagger at the other end of the road project.

Rick Jolly, president of the Woburn Police Patrolman's Union, was blunt: "They're taking food off of our table," he said.

from Investor's Business Daily, 2008-May-12:

Words Worth Saving

Law: Attorneys suing a gun dealer on behalf of the city of New York want any references to the Second Amendment barred from the trial. Has our judicial system fallen down a rabbit hole and landed in Wonderland?

It is a statement that, outside of fiction, we thought we'd never see: "Any references by counsel to the Second Amendment or analogous state constitutional provisions are likewise irrelevant."

The line is from a legal brief filed by attorneys for New York Mayor Michael Bloomberg ahead of a May 27 federal trial in which they will try to prove that Adventure Outdoors, a Georgia gun shop, one of 27 out-of-state gun shops the city is suing, is responsible for arming a disproportionate number of the city's criminals.

We understand that the legal profession is duly bound to zealously represent its clients' interests. But in asking the court to silence the Constitution, they leave the realm of reasonable representation and enter into a dangerous land where the law means only what the authorities want it to mean.

If lawyers can't refer to the Constitution — our founding document, the framework for all our laws and our guarantee that the government can't trample our rights — during a trial, then what's left? Without the Constitution, a trial is rigged, a defendant is left defenseless. Law becomes judicial and legislative whim, a farce, a tyrant's command, not a timeless and unwavering standard.

Alarming as this incident is, it's only made worse when considered in the context of previous crackpot legal theories, among them the idea that Supreme Court justices should use foreign courts and foreign opinions to inform their rulings. Coming to mind immediately is the Supreme Court's 2005 Roper v. Simmons decision. In that instance, five justices considered the "overwhelming weight of international opinion" and "leading members of the Western European community," Justice Anthony Kennedy wrote for the majority, when they ruled on the death penalty case.

Have we shed American blood since 1775 so that we can adopt other nations' laws while deeming our own precious Bill of Rights "irrelevant"? Have we become so euro-sophisticated that we feel our system needs to be infused with "new thinking" to save it from archaism? When should we expect lawyers suing a media outlet to ask the judge to bar references to the First Amendment?

Our Constitution has been worth dying for for more than 200 years. It is worth saving for another 200 — and many more. No other set of laws has advanced freedom and prosperity like it has. Though it is contrary to the spirit of the Constitution to say so, those who would tear it down don't deserve the benefits of its protections.

from the Wall Street Journal, 2008-Jan-19, p.A13, by John Yoo:

Terrorist Tort Travesty

War is a continuation of politics by other means, the German strategist Carl von Clausewitz famously observed in his 19th-century treatise, "On War." Clausewitz surely could never have imagined that politics, pursued through our own courts, would be the continuation of war.

Last week, I (a former Bush administration official) was sued by José Padilla -- a 37-year-old al Qaeda operative convicted last summer of setting up a terrorist cell in Miami. Padilla wants a declaration that his detention by the U.S. government was unconstitutional, $1 in damages, and all of the fees charged by his own attorneys.

The lawsuit by Padilla and his Yale Law School lawyers is an effort to open another front against U.S. anti-terrorism policies. If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11.

On Thursday, a federal judge moved closer to sentencing Padilla to life in prison. After being recruited by al Qaeda agents in the late 1990s, Padilla left for Egypt in 1998 and reached terrorist training camps in Afghanistan in 2000. American officials stopped him at Chicago O'Hare airport in 2002, based on intelligence gained from captured al Qaeda leaders that he was plotting a dirty bomb attack.

President Bush declared Padilla an enemy combatant and ordered him sent to a naval brig in South Carolina. After a federal appeals court rejected Padilla's plea for release, the government transferred him to Miami for trial for al Qaeda conspiracies unrelated to the dirty bomb plot. Federal prosecutors described Padilla as "a trained al-Qaeda killer," and a jury convicted him of conspiring to commit murder, kidnapping and maiming, and of providing material support to terrorists.

Now Padilla and his lawyers are trying to use our own courts to attack the government officials who stopped him. They claim that the government cannot detain Padilla as an enemy combatant, but instead can only hold and try him as a criminal. Padilla alleges that he was abused in military custody -- based primarily on his claim that he was held in isolation and not allowed to meet with lawyers.

But enemy prisoners in wartime never before received the right to counsel or a civilian trial because, as the Supreme Court observed in 2004, the purpose of detention is not to punish, but to prevent the enemy from returning to the fight.

Under Padilla's theory, the U.S. is not at war, so any citizen killed or captured by the CIA or the military can sue. In November 2002, according to press reports, a Predator drone killed two al Qaeda leaders driving in the Yemen desert. One was an American, Kamal Derwish, who was suspected of leading a terrorist cell near Buffalo. If Padilla's lawsuit were to prevail, Derwish's survivors could sue everyone up the chain of command -- from the agent who pressed the button, personally -- for damages.

Padilla's complaints mirror the left's campaign against the war. To them, the 9/11 attacks did not start a war, but instead were simply a catastrophe, like a crime or even a natural disaster. They would limit the U.S. response only to criminal law enforcement managed by courts, not the military. Every terrorist captured away from the Afghanistan battlefield would have the right to counsel, Miranda warnings, and a criminal trial that could force the government to reveal its vital intelligence secrets.

America used this approach in the 1990s with al Qaeda. It did not work. Both the executive and legislative branches rejected this failed strategy. In the first week after 9/11, Congress passed a law authorizing the use of military force against any person, group or nation connected to the attacks, and recognized the President's constitutional authority "to deter and prevent acts of international terrorism against the United States."

In the spring of 2002, I was a Justice Department lawyer asked about the legality of Padilla's detention. There is ample constitutional precedent to support the detention of a suspected al Qaeda agent, even an American citizen, who plans to carry out terrorist attacks on our soil. During World War II, eight Nazi saboteurs secretly landed in New York to attack factories and plants. Two of them were American citizens.

After their capture, FDR sent them to military detention, where they were tried and most of them executed. In Ex Parte Quirin, the Supreme Court upheld the detention and trial by military authorities of American citizens who "associate" with "the military arm of the enemy" and "enter this country bent on hostile acts." If FDR were president today, Padilla might have fared far worse than he has.

None of that matters to the anti-war left. They failed to beat President Bush in the 2004 elections. Their efforts in Congress to repeal the administration's policies have gone nowhere. They lost their court challenges to Padilla's detention. The American public did not buy their argument that the struggle against al Qaeda is not really a war.

So instead they have turned to the tort system to harass those who served their government in wartime. I am not the only target. The war's critics have sued personally Donald Rumsfeld, John Ashcroft, Robert Gates, Paul Wolfowitz and other top government officials for their decisions in the war on terrorism. Other lawsuits have resorted to the courts to attack the telecommunications companies that helped the government intercept suspected terrorist calls.

It is easy to understand why CIA agents, who are working on the front lines to protect the nation from attack, are so concerned about their legal liability that they have taken out insurance against lawsuits.

Worrying about personal liability will distort the thinking of federal officials, who should be focusing on the costs and benefits of their decisions to the nation as a whole, not to their own pockets. Even in the wake of Watergate, the Supreme Court recognized that government decisions should not be governed by the tort bar.

In a case about warrantless national security wiretaps ordered by Nixon's attorney general, John Mitchell, the court declared that executive branch officials should benefit from qualified immunity. Officials cannot be sued personally unless they had intentionally violated someone's clearly established constitutional rights.

The Padilla case shows that qualified immunity is not enough. Even though Supreme Court precedent clearly permitted Padilla's detention, he and his academic supporters can still file harassing lawsuits that promise high attorneys' fees. The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.

The prospect of having to waste large sums of money on lawyers will deter talented people from entering public service, leading to more mediocrity in our bureaucracies. It will also lead to a risk-averse government that doesn't innovate or think creatively. Government by lawsuit is no way to run, or win, a war.

Mr. Yoo is a professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. He is the author of "War By Other Means" (Grove/Atlantic 2006).

from the Associated Press, 2008-Feb-29, by David Crary:

Record-High Ratio of Americans in Prison

NEW YORK — For the first time in U.S. history, more than one of every 100 adults is in jail or prison, according to a new report documenting America's rank as the world's No. 1 incarcerator. It urges states to curtail corrections spending by placing fewer low-risk offenders behind bars.

Using state-by-state data, the report says 2,319,258 Americans were in jail or prison at the start of 2008 — one out of every 99.1 adults. Whether per capita or in raw numbers, it's more than any other nation.

The report, released Thursday by the Pew Center on the States, said the 50 states spent more than $49 billion on corrections last year, up from less than $11 billion 20 years earlier. The rate of increase for prison costs was six times greater than for higher education spending, the report said.

The steadily growing inmate population "is saddling cash-strapped states with soaring costs they can ill afford and failing to have a clear impact either on recidivism or overall crime," the report said.

Susan Urahn, managing director of the Pew Center on the States, said budget woes are pressuring many states to consider new, cost-saving corrections policies that might have been shunned in the recent past for fear of appearing soft on crime.

"We're seeing more and more states being creative because of tight budgets," she said in an interview. "They want to be tough on crime. They want to be a law-and-order state. But they also want to save money, and they want to be effective."

The report cited Kansas and Texas as states that have acted decisively to slow the growth of their inmate population. They are making greater use of community supervision for low-risk offenders and employing sanctions other than reimprisonment for offenders who commit technical violations of parole and probation rules.

"The new approach, born of bipartisan leadership, is allowing the two states to ensure they have enough prison beds for violent offenders while helping less dangerous lawbreakers become productive, taxpaying citizens," the report said.

While many state governments have shown bipartisan interest in curbing prison growth, there also are persistent calls to proceed cautiously.

"We need to be smarter," said David Muhlhausen, a criminal justice expert with the conservative Heritage Foundation. "We're not incarcerating all the people who commit serious crimes. But we're also probably incarcerating people who don't need to be."

According to the report, the inmate population increased last year in 36 states and the federal prison system.

The largest percentage increase — 12 percent — was in Kentucky, where Gov. Steve Beshear highlighted the cost of corrections in his budget speech last month. He noted that the state's crime rate had increased only about 3 percent in the past 30 years, while the state's inmate population has increased by 600 percent.

The report was compiled by the Pew Center's Public Safety Performance Project, which is working with 13 states on developing programs to divert offenders from prison without jeopardizing public safety.

"Getting tough on criminals has gotten tough on taxpayers," said the project's director, Adam Gelb.

According to the report, the average annual cost per prisoner was $23,876, with Rhode Island spending the most ($44,860) and Louisiana the least ($13,009). It said California — which faces a $16 billion budget shortfall — spent $8.8 billion on corrections last year, while Texas, which has slightly more inmates, was a distant second with spending of $3.3 billion.

On average, states spend 6.8 percent of their general fund dollars on corrections, the report said. Oregon had the highest spending rate, at 10.9 percent; Alabama the lowest at 2.6 percent.

Four states — Vermont, Michigan, Oregon and Connecticut — now spend more on corrections than they do on higher education, the report said.

"These sad facts reflect a very distorted set of national priorities," said Sen. Bernie Sanders, an independent from Vermont, referring to the full report. "Perhaps, if we adequately invested in our children and in education, kids who now grow up to be criminals could become productive workers and taxpayers."

The report said prison growth and higher incarceration rates do not reflect an increase in the nation's overall population. Instead, it said, more people are behind bars mainly because of tough sentencing measures, such as "three-strikes" laws, that result in longer prison stays.

"For some groups, the incarceration numbers are especially startling," the report said. "While one in 30 men between the ages of 20 and 34 is behind bars, for black males in that age group the figure is one in nine."

The racial disparity for women also is stark. One of every 355 white women aged 35 to 39 is behind bars, compared with one of every 100 black women in that age group.

The nationwide figures, as of Jan. 1, include 1,596,127 people in state and federal prisons and 723,131 in local jails. That's out of almost 230 million American adults.

The report said the United States incarcerates more people than any other nation, far ahead of more populous China with 1.5 million people behind bars. It said the U.S. also is the leader in inmates per capita (750 per 100,000 people), ahead of Russia (628 per 100,000) and other former Soviet bloc nations which round out the Top 10.

The U.S. also is among the world leaders in capital punishment. According to Amnesty International, its 53 executions in 2006 were exceeded only by China, Iran, Pakistan, Iraq and Sudan.

from the Telegraph of London, 2008-Jan-19, by Clare Dwyer Hogg and Jonathan Wynne-Jones:

from the Independent of London, 2008-Feb-22, by Amol Rajan:

TV executive faces jail in Dubai for barely visible cannabis speck

A London-based television executive is facing four years in jail after an amount of cannabis weighing less than a grain of sugar was found in his bag at Dubai airport.

Cat Le-Huy, 31, a German national and head of technology at the television production company Endemol, has been held for three weeks without charge after flying to the United Arab Emirates on 26 January.

Friends and family have been told he can expect to face the minimum jail sentence for drug possession in the tiny Arab emirate. Mr Le-Huy had been on a two-day visit to look into investing in the region. On Tuesday, the Radio 1 DJ Grooverider, whose real name is Raymond Bingham, was jailed in Dubai for four years for possession of 2.16g of cannabis with a street value of about £10.

The Foreign Office says nine British nationals have been detained in Dubai over drugs offences this year, including Keith Brown, from the West Midlands, who was also jailed this month for four years after a speck of cannabis was found stuck to the bottom of a shoe.

Mr Le-Huy, of Belsize Park, north London, said he was first reprimanded for possession of jet-lag pills. When these were shown to be melatonin, which can be bought over the counter in Dubai and in the US, and in herbal stores in Britain, he was asked to provide a urine sample. He said when this also proved negative, his bag was searched. Airport officials found 0.03 grams of hashish, an amount not visible to the naked eye.

Mr Le-Huy is being held in Al-Wathba prison, 40 miles north of Dubai, in a desert. Friends say he has befriended DJ Grooverider, with whom he shares Australian friends, and is also close to several other English-speaking inmates.

A fighting fund has been set up to pay Mr Le-Huy's mounting legal fees, and has already raised £25,000. Mr Le-Huy, who came to Britain 10 years ago, worked at Endemol for two years, including on the reality TV show Big Brother.

Radha Sterling, a close friend of Mr Le-Huy who is co-ordinating the fund, said: "Cat absolutely hates marijuana. He never goes anywhere near it, partly because he's asthmatic and partly because he's very conscious about his health.

"He's a man of integrity, intelligent, respected, and law-abiding. We have asked for independent testing of the dirt in his bag and to know what equipment they are using but they have refused to help us."

Customs authorities have successfully applied to hold Mr Le-Huy in Dubai until at least the end of March. A 5,000-signature appeal has been sent to Sheikh Mohammed bin Rashid al-Maktoum, ruler of Dubai and the Prime Minister of the United Arab Emirates.

from the Sydney Morning Herald, 2008-Feb-25, by Paul Bibby:

Ex-Australian resident locked up in UAE jail for drugs

A former Australian resident has been imprisoned in the United Arab Emirates for nearly four weeks without charge or trial for allegedly possessing over-the-counter sleeping pills and 0.03 grams of hashish.

But the Federal Government says it cannot help Cat Le-Huy or his family because he no longer calls Australia home.

Mr Le-Huy, 31, arrived in Australia from Vietnam when he was five.

His parents and brother, who live in Adelaide, have Australian citizenship.

He moved to London from Adelaide in 2001.

He has British and German citizenship, the latter through his partner.

He eventually joined television company Endemol UK where he worked on the British version of Big Brother.

But the man known to his Aussie friends as "Diz" became the victim of a real-life authoritarian regime when he walked into Dubai airport on January 26.

Immigration officers pulled Mr Le-Huy aside for a random bag search and allegedly found a small unlabelled bottle of melatonin, a sleep remedy available over the counter at most pharmacies. Later, small flecks of a dirt-like substance were discovered.

Authorities took the 31-year-old into an interrogation room where he was strip-searched, urine tested and coerced into signing a confession in Arabic to drug possession - a crime that carries a a four-year jail term in the UAE.

Dubai police took over the investigation, locking Mr Le-Huy in police cells and extending his detention for "further testing".

Nine days ago he was moved to Al-wathba prison in Abu Dhabi, a facility known for human rights abuses.

Three days later police informed him that the brown flecks were 0.03 grams of hashish, and that he would be detained for a further 40 days, pending investigations.

"I suppose there's a sense of disbelief more than anything else," Mr Le-Huy told the BBC.

"I miss my friends and family ... I'm also aware of the stress this is causing ... "

The British and German embassies won't intervene until he's been charged. The Le-Huy family have now turned to the Australian Government for help. But they were told that nothing could be done.

"The Australian Government has no standing to intervene on behalf of non-Australian citizens or permanent residents," a spokeswoman from the office of Foreign Affairs Minister Steven Smith said.

Mr Le-Huy's brother Linh said he was disappointed with the decision.

"I can see where they're coming from, but I'm disappointed - they've left him out in the cold," Mr Le-Huy said.

"We just want him out of that prison and preferably out of the country. There is no way on earth he would have deliberately taken drugs into a foreign country."

With the Australian Government unwilling to help, the large network of expatriate Australians across Europe are leading an internet campaign to get Mr Le-Huy out of jail.

Half-a-dozen websites, including two Facebook pages and an online petition are now devoted to his cause, and the campaign has raised $50,000 for a lawyer.

"Cat has been the victim of the unjust, draconian, possibly corrupt Dubai legal system," the expat Australian leading the campaign, Radha Stirling, said.

"Dubai is the most common stop-over for Australians travelling to and from London - this could happen to anyone."

from the Greeley Tribune via RockyMountainNews.com, 2008-Jan-17, by Andrew Villegas:

Scores plucked off street for jury duty in Greeley

Karen McMillan walked into the jury room in the Weld County Courthouse on Wednesday morning, trying to keep her feet from pounding the floor out of frustration.

"This is not right," McMillan told court administrators, who minutes before had served her with an emergency jury summons in the downtown Greeley Safeway.

"You need to give us warning," McMillan said. "We have jobs to go to."

McMillan was picking up a few things at the grocery store and trying to get to work when she was approached by a court administrator who told she had to drop everything and go to the courthouse to serve.

She was one of nearly 70 people walking around downtown Greeley who were summoned to emergency jury duty Wednesday morning after many people who were summoned by mail six weeks ago didn't show up.

The no-shows left judges and administrators scrambling to fill jury boxes. The administrators eventually got an order from Judge Roger Klein to serve people on the street with summonses to report immediately.

Of the 200 summonses Weld County and District Court administrators sent by mail recently, only 39 people did their civic duty and reported for jury duty Wednesday morning. By early Wednesday afternoon, more than 50 people had reported to emergency jury duty, many perturbed that they had to drop everything to possibly serve on a jury.

"I have like 5 tons of stuff to do at work," McMillan said.

Karen Salaz, judicial district administrator, said that the court rarely has to resort to plucking people from the street to serve on juries.

Salaz said in an e-mail that it had been more than 15 years since the court has had to take people off the streets to serve. The court resorted to the measure in November and again Tuesday and Wednesday.

Meanwhile, downtown business owners were worried about a possible loss of business because they had to serve.

Beth Tadier, who owns Quarter Moon Glass Repair, was coming out of the downtown Safeway when she was handed the emergency summons and couldn't go back to her business to help her husband.

"You're just jerked off the street," Tadier said. "I was angry, but I've calmed down."

The missing jurors also caused some lawyers to object to the use of emergency jurors in their trials.

Stephanie Stout, a state public defender, asked County Judge Michele Meyer to stop the jurors from being put on a drunken-driving case that she was defending because she said the method used to select the jurors wasn't random and that upset people could affect the jury's ability to make an objective decision. The judge rejected the objection.

People who don't show up for jury duty can face a fine or even six months in jail.

Failure to appear

* In Weld County, people who don't show up for jury duty could be charged with failure to obey a juror summons, a class 3 misdemeanor punishable by up to a $750 fine and or six months in jail.

from the Wall Street Journal, 2007-Mar-27, p.A18, by Lawrence J. Mcquillan and Hovannes Abramyan:

The Tort Tax

Economists have long understood that America's tort system acts as a serious drag on our nation's economy. Although many excellent studies have been conducted, no single work has fully captured the true total costs, both static and dynamic, of excessive litigation.

The good news: We now have some reliable figures. The bad news: The costs are far higher than anyone imagined.

Based on our estimates, and applying the best available scholarly research, we believe America's tort system imposes a total cost on the U.S. economy of $865 billion per year. This constitutes an annual "tort tax" of $9,827 on a family of four. It is equivalent to the total annual output of all six New England states, or the yearly sales of the entire U.S. restaurant industry.

How does the legal system extract such an astounding amount from our economy? We applied the rent-seeking theory of transfers from economic science to pick up where past studies -- including the highly regarded Tillinghast-Towers Perrin study -- leave off. We began by examining the static costs of litigation -- including annual damage awards, plaintiff attorneys' fees, defense costs, administrative costs and deadweight costs from torts such as product liability cases, medical malpractice litigation and class action lawsuits. The annual static costs, $328 billion per year, are well in excess of previous Tillinghast estimates.

But $328 billion is only the beginning. After all, litigation doesn't just transfer wealth, it also changes behavior, and often in economically unproductive ways. Any true estimate of the costs of America's tort system must also include these dynamic costs of litigation -- the impact on research and development spending, the costs of defensive medicine and the related rise in health-care spending and reduced access to health care, and the loss of output from deaths due to excess liability.

Consider the impact of medical liability concerns on the health-care sector. It is a well documented fact that the fear of litigation prompts doctors to engage in expensive defensive medicine. PricewaterhouseCoopers calculates that medical liability concerns increase annual health care spending by $124 billion in 2006 dollars, which must be added to any comprehensive estimate of litigation costs.

At the margin, higher health-care costs also reduce access to care for patients. We estimate that the additional $124 billion in liability-based health care costs adds 3.4 million Americans to the rolls of the uninsured. Uninsured people are more likely to suffer from a number of diseases and serious or even fatal conditions. Economically, the result is that more Americans are absent from the workforce and their productivity declines -- a total loss of output we estimate to be $39 billion per year.

Excessive liability also hampers innovation. Ideally, product liability should induce companies to invest in safety-related improvements to products. But the ideal is not always the reality. As liability costs increase, companies respond by shifting funds from research and development into fighting litigation and withholding or withdrawing products from the market. Less R&D spending means fewer new products and less innovation.

Research by W. Kip Viscusi and Michael J. Moore suggests that 13 U.S. industries have tort costs that exceed this tipping point. Overall, we found that foregone R&D due to excessive liability results in lost sales of new products every year of over $367 billion.

An overly expensive liability system also increases the cost of many risk-reducing products and services, at the expense of human lives. A previous study we examined determined that the adoption of tort reforms over the past couple of decades has prevented more than 20,000 deaths. Our analysis goes further to estimate the human cost of a failure to enact reforms.

Based on data from previous studies, we determined that more than 77,000 people would have been alive today and contributing to the workforce, but are not because of a failure to enact comprehensive tort reforms in the states. The cost of foregone output from these lost workers is more than $7 billion each year.

What we're left with, then, are annual dynamic costs of $537 billion resulting from our litigation system. Add that to the static costs of $328 billion and you arrive at the total of over $865 billion per year.

In this study we do not venture to propose a specific litigation-reform agenda. But we do provide all who are concerned with this issue some hard numbers to work with. And if you're wondering who the victims are of a tort system out of control, the answer today: almost everyone.

Mr. McQuillan is director of business and economic studies at the Pacific Research Institute, where Mr. Abramyan is a public policy fellow. They are the authors of "Jackpot Justice: The True Cost of America's Tort System," which was released today.

from the Wall Street Journal, 2007-Feb-23, p.A11, by David B. Rivkin, Jr. and Lee A. Casey:

Lawfare

The term "lawfare" describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.

Al Qaeda, of course, is an experienced lawfare practitioner. Its training manual, seized by British authorities in Manchester, England, openly instructs detained al Qaeda fighters to claim torture and other types of abuse as a means of obtaining a moral advantage over their captors. That advice has been routinely followed by detainees at Guantanamo Bay, who have succeeded in generating incessant demands -- from European officials among others -- for the base's closure and their own liberation.

These efforts, however, pale to insignificance when compared to the blizzard of litigation initiated in the U.S. federal courts on behalf of al Qaeda and Taliban detainees. The suits range from habeas corpus petitions to free captured enemy combatants -- cases that were dismissed by the U.S. Court of Appeals in Washington, D.C. on Tuesday -- to tort suits seeking monies from U.S. government officials, to challenges regarding the detainees' conditions of confinement.

There was a quixotic attempt to save Saddam Hussein's life by asking a federal court in Washington, D.C. to "stay" his execution by the Baghdad government. Several suits seek to hold the U.S. liable for the alleged misconduct of other governments. Of these, the lawsuit by Canadian Maher Arar, ostensibly tortured after being "rendered" to Syria, is the best known.

The most significant common thread among all these actions is the clear desire to portray U.S. government actions as illegal and unprecedented. In fact, it is the claims for extensive due process rights for captured enemy combatants that are unprecedented.

Combatants, whether the regular soldiers of sovereign states, irregular guerillas or terrorists, have never enjoyed the right to contest the legality of their detention in the civilian courts, or to a criminal trial. The Supreme Court reaffirmed these traditional rules in Hamdi v. Rumsfeld (2004), where a clear majority held that captured al Qaeda operatives could constitutionally be held as enemy combatants for the duration of hostilities without the due process required for individuals accused of criminal violations. The only process the court considered necessary was an opportunity to contest, before military authorities, the factual basis of their classification as enemy combatants with a limited opportunity for judicial review.

Nevertheless, lawyers for the detainees continue to demand a full-fledged criminal process in the civilian courts for their clients. Former Clinton Attorney General Janet Reno has argued in a friend of the court brief that one detainee (Ali Saleh Kahlah al-Marri) should be entirely removed from the military justice system, even though he already has received far more extensive judicial process than that required by the Hamdi decision.

Similarly, in a grim echo of domestic prisoners-rights cases, lawyers for another detainee, Saifullah Paracha, have demanded that he be transferred from Guantanamo Bay to a civilian U.S. hospital for a common medical procedure -- a cardiac catheterization.

Perhaps the most pernicious ongoing lawfare example is the effort to hold U.S. officials financially liable for their wartime conduct based on the theories developed in Bivens v. Six Unknown Named Agents (1971). In that case, the Supreme Court permitted a civil damage suit against individual federal drug enforcement agents for allegedly violating the plaintiff's constitutional rights, in particular the Fourth Amendment guarantee against unreasonable searches and seizures.

Several Bivens actions have been filed on behalf of foreign combatants captured, detained and later released by U.S. forces. None have been particularly successful -- so far -- but the determined effort to use legal principles developed in the context of civilian law-enforcement operations on U.S. soil against officials directing an ongoing armed conflict overseas reveals an unsettling policy agenda.

These efforts are of a piece with a similar "progressive" movement -- ongoing at least since the end of World War II -- to remake the traditional laws of war, attempting to import into the area of armed conflict concepts and norms from the world of domestic law enforcement. Thus, leftist NGOs routinely demand that irregular enemy combatants like al Qaeda and the Taliban be treated as POWs or criminal defendants, claim that military force can be applied only to the minimum amounts necessary to neutralize a particular opponent (rather than with a view to achieving ultimate victory), and have sought to ban an increasing number of weapons and weapons systems as being "inherently indiscriminate."

The effect of this lawfare effort, were it successful, would be to make it exceptionally difficult -- if not impossible -- for a law-abiding state to wage war in anything like the traditional manner, bringing the full weight of the national armed forces to bear against an enemy, without prompting charges of war crimes and efforts to intimidate individual officials with prosecutions on ersatz "war crimes" theories. In fact, the criminalization of traditional warfare seems to be the goal.

Unfortunately, the progressive humanitarians (as they would certainly describe themselves) have embarked on this campaign to criminalize warfare (a kind of judicially enforced Kellog-Briand Pact), without giving much thought to alternatives for ensuring the welfare and security of the civilian populations that the armed forces of states, and of the U.S. in particular, are raised and maintained to protect. To the extent that terrorist combatants are given the rights of criminal defendants, their ability to sustain long-term hostilities, and to reach their civilian targets, is increased.

Lawfare designed to delegitimize the use of American military force, and the American way of war, certainly has the potential to undermine public support for the war effort, both at home and abroad. Recognizing the stakes involved, the U.S. should be as committed to winning the lawfare battle as the ground combat in Afghanistan and Iraq.

Merely defending itself in court is not enough. The U.S. must go on both the legal and public diplomacy offensive, utilizing such aggressive litigation tactics as seeking sanctions against lawyers who make frivolous arguments or violate security regulations. Most important, the administration should strive to explain, tirelessly and at the highest levels, that its policies are both legal and legitimate and that it is the lawfare's practitioners who are the true radicals.

Messrs. Rivkin & Casey, who served in the Department of Justice during the Reagan and George H.W. Bush administrations, are writing a book on war's evolving legal architecture.

from the Jewish Telegraphic Agency via Forward.com, 2009-Oct-5:

Fearing Arrest, Ya'alon Cancels Britain Trip

Jerusalem — An Israeli deputy prime minister canceled a planned trip to Britain out of fear that he would be arrested.

Strategic Affairs Minister Moshe Ya'alon was scheduled to attend a fund-raising dinner by the British Jewish National Fund on behalf of Benji's Home, for Israeli soldiers with no family in the country. But the Israeli Foreign Ministry's legal department advised Ya'alon that pro-Palestinian groups could ask a British court to have him arrested and put on trial for war crimes, specifically the assassination of a senior Hamas terrorist in 2002, in which 14 civilians were killed.

Ya'alon served as chief of staff of the Israel Defense Forces at the time of the assassination. He left the post in 2005.

The Israeli legal team warned that despite his being a government minister, he likely would not be given diplomatic immunity. A lawsuit could be filed under the 1988 Criminal Justice Act, which gives courts in England and Wales universal jurisdiction in war crimes cases.

Ya'alon's spokesman announced the cancellation of the trip on Monday.

The cancellation comes less than a week after a British attorney filed a lawsuit against Israeli Defense Minister Ehud Barak on behalf of several Palestinian families who were victims of Israel's military offensive in Gaza, on suspicion of committing war crimes.

A London judge ruled that while Barak's war crimes were well documented, he enjoyed diplomatic immunity on the trip, during which he met with Prime Minister Gordon Brown and Foreign Secretary David Miliband to discuss the Middle East peace process, Gaza and Iran.

from the Washington Post, 2007-Jul-31, p.A18:

Bad Interpretation
For lack of a translator, a rape suspect is freed.

A MAN ACCUSED of raping a 7-year-old girl and of sexually assaulting an 18-month-old toddler is walking the streets today, thanks to a court ruling that ought to be reversed.

Mahamu D. Kanneh was indicted in December 2004 on nine counts, including rape and sexual abuse of a minor. Montgomery Circuit Court Judge Katherine D. Savage threw out the charges this month after concluding that Mr. Kanneh had been denied a speedy trial. Maryland law stipulates that a defendant be tried within 180 days after being charged, unless he waives that right. Mr. Kanneh's defense lawyer did just that in May 2005; she has since argued that she meant only to delay the proceedings for a one-time, six-month period in order to gather more evidence for her client's defense.

Major delays in the case were caused by the inability to find a translator for Mr. Kanneh, who was born in Liberia and speaks Vai, a relatively obscure West African language. Prosecutors, apparently frustrated with the delays, challenged Mr. Kanneh's need for a translator, pointing out that he had attended high school classes taught in English in the United States. In November 2006, a court-appointed psychiatrist, originally enlisted to determine whether Mr. Kanneh was mentally competent to stand trial, concluded that he was -- but only with the assistance of a translator. One translator for Mr. Kanneh quit because she found the allegations too disturbing; another could not continue working after becoming seriously ill in February 2006.

But on July 17, the very day Judge Savage threw out the charges, there was a Vai translator in court at the defense table, according to people with direct knowledge of the matter. That translator had also helped Mr. Kanneh during a July 12 hearing and was available for Mr. Kanneh's trial -- scheduled to begin within two weeks of the day Judge Savage dismissed the case.

The Montgomery County state's attorney's office has appealed the ruling and, we believe, should prevail. While significant delays in a case are never desirable, those in the Kanneh matter were not beyond the pale. The dismissal of the charges not only prevented the alleged victims from having their day in court, it also eliminated any chance that Mr. Kanneh had of vindicating himself. An appeal is likely to take about one year, so the state's attorney should explore whether other legal avenues -- such as filing a motion for reconsideration with Judge Savage or the court's administrative judge -- might lead to a speedier resolution.

This case has garnered extraordinary publicity -- among newspapers and bloggers and on television. Some of that attention has been disturbing. The judge has been unfairly pilloried for doing nothing more than exercising her best judgment in interpreting the law. This kind of abuse only serves to erode confidence in the justice system as a whole and may make another judge think twice before issuing a decision he or she believes is right but is likely to be unpopular. When that happens, justice itself is undermined.

from the Wall Street Journal via OpinionJournal.com, 2007-Jun-18, by Walter Olson:

The Great American Pants Suit
A judge pins a $67 million value on a pair of trousers--his own.

When attorney Roy Pearson filed suit demanding $67 million from the Chung family, whose Washington dry cleaners had mishandled his pair of trousers, he must have felt he was sitting pretty. Menacing a merchant who's annoyed you with terrifyingly high legal penalties--that's the way to show who wears the pants, right?

Mr. Pearson probably had no idea that his Great American Pants Suit--the trial of which just wound up in a Washington courtroom last week, with a verdict expected this week--would stir commentary around the world and come to symbolize the extent to which lawsuits in America can serve as a hobby for the spiteful and a weapon for the rapacious.

It all began two years ago when Mr. Pearson walked into Custom Cleaners, a Northeast D.C. establishment owned by Jin Chung, Soo Chung and Ki Chung. He laid down $10.50 to have a pair of pants altered. The results dissatisfied him: The job wasn't finished on time, and he says the pants he was given were someone else's, which the Chungs deny. He demanded $1,150 for a new suit; the Chungs demurred. So it was off to court, with the claimed damages subject to alterations, in an expansive direction.

How billowy did those damages get? Well, it seems Mr. Pearson needed to be paid for 10 years' worth of weekend car rentals so that he could patronize a different dry cleaner. He wanted $500,000 for emotional distress and--though representing himself--$542,000 in legal fees. Best of all, he claimed that the signs on display at Custom Cleaners, "Satisfaction Guaranteed" and "Same Day Service," were fraudulent, entitling him to damages of $1,500 each per day under D.C. consumer law. He multiplied 12 violations by three defendants by 1,200 days, and soon was up over $65 million (later cut to a mere $54 million).

---

The Chungs offered Pearson $12,000, which he turned down. The family says the suit has run through their savings in legal fees and harmed their credit, to say nothing of their peace of mind; they've even considered returning to their native Korea, which they left in 1992. But what really gave legs to the story was this: while his lawsuit was afoot, attorney Pearson himself was overcoming a two-year spell of unemployment to win appointment as an administrative law judge in D.C.

So don't dismiss him as just some random bully with a law license. For those in our nation's capital, he represents the majestic face of the law itself.

A few observations:

• Phrases like "Do you realize I'm a lawyer?" uttered in the course of routine disputes with storekeepers, neighbors, school principals, etc., probably account for more of the legal profession's aggregate unpopularity than any number of scandals in the actual representation of clients.

• David and Goliath talk notwithstanding, legal action is often a powerful dis-equalizer of the playing field, as those who know how to work the system fleece the outsiders, the novices, the distracted and the trustful.

• Pretty much every other advanced country would have afforded the Chungs better protection against a lawsuit like this. Under proper "loser-pays" rules, the Chungs would be correctly construed as having won even if Mr. Pearson proves damages of, say, $1,000, since they would have prevailed on the actual issues in dispute. D.C. does have a weak "offer of judgment" rule that might let the Chungs recover some miscellaneous court costs--but not their major expense, lawyers' fees--if Mr. Pearson loses or wins but a token sum. So even if they win, they're bound to lose.

• The other source of Mr. Pearson's power--his ability to hold the threat of huge penalties over the Chungs' heads--arises from consumer laws that encourage complainants to multiply the stated penalty for a single infraction by the whole universe of a business's clientele, or by all the days in the calendar, with no need to prove actual injury.

---

This sort of mechanical damage-multiplication has been a key engine in shakedown scandals in California (where roving complainants have mass-mailed demand letters to small businesses over technical infractions); in "junk-fax" litigation demanding billions from hapless merchants in Texas, Illinois and elsewhere; and in important sectors of litigation aimed at bigger businesses, including claims against credit-card providers and purveyors of "light" cigarettes. Whole dockets'-worth of opportunistic litigation would dry up if we revised these laws so as to require a showing of actual injury. Doing so would require overcoming epic resistance from the litigation lobby.

It's nice to see that even the organized plaintiffs bar piously deplores Mr. Pearson's abuse of the law. It would be even nicer if they agreed to stop opposing reforms that would give the Chungs of the world a fighting chance the next time around.

Mr. Olson is senior fellow at the Manhattan Institute and edits Overlawyered.com.

from the Wall Street Journal via OpinionJournal.com, 2007-Mar-28, probably by James Taranto:

The Libby Precedent
Why government officials prefer to take the Fifth.

If Senate Judiciary Chairman Patrick Leahy wants to investigate the Bush Administration's dismissal of eight U.S. attorneys, that's certainly his prerogative. But he and other Democrats determined to play up this faux scandal shouldn't be surprised if government officials decide they'd rather not step into this obvious perjury trap.

The Judiciary Committee is seeking testimony from, among others, Monica Goodling, the Justice Department's liaison to the White House. Democrats want to quiz Ms. Goodling on her communications with other Justice officials such as Deputy Attorney General Paul McNulty, who testified about the firings before the Senate committee in February. This week Ms. Goodling indicated she will exercise her Constitutional right to keep mum.

Sad to say, this is one more unfortunate result of the Beltway's modern habit of criminalizing political differences, a la the Scooter Libby travesty. Congress has the right to conduct oversight of the executive, and in a better world government officials would be willing to testify and give as good as they get. Thus would the public be educated about the facts and policy differences be aired.

But Ms. Goodling has been around, and she can see Democrats don't really want to know the truth; they want to shout "liar, liar" and set the stage to accuse Justice officials of criminal behavior. In a statement to the committee explaining her decision, Ms. Goodling said, "I have read public remarks by members of both the House and Senate Committees on the Judiciary in which those members have drawn conclusions about the subject matter and the testimony now under investigation by the Committee." We've read them, too.

Representative Linda Sanchez has already concluded that there have been "attempts to mislead the public on this issue." In a joint press conference, Senators Charles Schumer and Dianne Feinstein characterized Justice's testimony as "misleading statement after misleading statement--deliberate misleading statements." Mr. Schumer is also a lawyer, and we reckon he deliberately chose that word "deliberate" as a prelude to charging criminal deception and keeping the issue alive long enough to help elect more Senate Democrats next year. (He runs the Senate Democratic campaign committee.)

Senator Leahy himself issued a press release asserting that Attorney General Alberto Gonzales and Mr. McNulty "failed to tell Congress the whole truth about this matter under oath." Now that these Democrats have reached a verdict, they want to hold the trial.

---

If anyone had any doubt about this criminalization game, it should have vanished late Monday with Senator Leahy's suggestion that Ms. Goodling's decision not to testify implies that she's done something wrong. "The American people are left to wonder what conduct is at the base of Ms. Goodling's concern that she may incriminate herself in connection with criminal charges if she appears before the committee under oath," Mr. Leahy said.

But the only thing the American people might wonder about is why the Senator, a lawyer who should know better, has seen fit to bully an individual for doing nothing more than invoking her Fifth Amendment privilege against self-incrimination. Mr. Leahy's public smear prompted a rebuttal from Ms. Goodling's lawyer, John Dowd, who reminded the Senator that "the Fifth Amendment protects innocent persons who might otherwise be ensnared by ambiguous circumstances, as much as it protects those who may have done something wrong."

Count Ms. Goodling's silence as one more unintended consequence of the Scooter Libby case. Mr. Libby made the mistake of cooperating with the investigation into a leak he had nothing to do with, and he later found himself charged with perjury based on little more than conflicting memories of who said what and when. The prosecutor never even charged anyone for the leak that started it all.

There's no apparent underlying crime in this "scandal" either, but we'll bet more than one Democrat will soon be calling for a "special prosecutor" to investigate it nonetheless. The New York Times has already floated the idea, as usual. As Mr. Dowd put it in his letter to Mr. Leahy: "The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real. One need look no further than the recent circumstances and proceedings involving Lewis Libby."

If the probing Senators want to know why lawyers can't in good conscience advise their honest clients in government to answer Senate questions, they should look first to the bitter climate their own habits have created.

from the Wall Street Journal via OpinionJournal.com, 2007-Apr-2, by Dorothy Rabinowitz:

First They Came for the Jews
A prosecution under the Espionage Act threatens the First Amendment.

Early in June 2004, an employee of the American Israel Pubic Affairs Committee, AIPAC--better known by its media tag, "the powerful Israeli lobby"--received an urgent phone call. Pentagon analyst Lawrence Franklin, a specialist on Iran, informed AIPAC lobbyist Keith Weissman that they had better meet because he had news of the most important kind to disclose. Mr. Weissman not surprisingly agreed to the rendezvous, held in Pentagon City, Va., where he was told about an imminent, Iran-directed assault on American troops and Israeli agents in Iraq. First, though, Mr. Franklin delivered a warning whose purpose would be clear only later. What he was about to tell him was highly classified, "Agency stuff," and having it could get him into trouble, he informed Mr. Weissman.

Impelled by the urgency of the message, the lobbyist nonetheless quickly shared it with his senior colleague, Steve Rosen, director of foreign policy issues for AIPAC. Hoping to raise the alarm about the imperiled Americans and Israelis, the two then contacted a Washington Post reporter (who filed no story on the matter) and an Israeli embassy officer.

Mr. Weissman didn't know for some time that his trusted Pentagon informant--a man he and his AIPAC colleague had met with several times before--had, at this particular meeting, been wearing a wire for the FBI. Or that his warning that he was sharing highly classified stuff had been spelled out for the purpose of evidence gathering. Neither of the AIPAC lobbyists knew, then, that they had been entrapped in a sting, to lead ultimately to a remarkable legal show. Their trial, which begins this June, marks the first ever attempt by government prosecutors to convict private citizens under the 1919 Espionage Act. Nor did Larry Franklin have any idea, either, of the trap in which he was himself now ensnared.

Mr. Franklin's problem began when he was spotted lunching with Steve Rosen, for some time the object of FBI surveillance. The Iran specialist had first met with Messrs. Rosen and Weissman in February 2003, meetings repeated on at least three other occasions. The two AIPAC employees had reason to see in Mr. Franklin, a reserve Colonel in the U.S Air Force, a staunch patriot who held values and geopolitical views much like their own. Mr. Franklin's driving concern--the danger posed by a terrorist Iran, and the need for vigorous countermeasures by the U.S.--played no small role in their discussions. The centerpiece of the indictment to come concerned his disclosures to Steve Rosen about an internal policy document on Iran, which, the government alleged, was classified.

The sympathetic bond (characterized as a conspiracy in the government's indictment) between the Pentagon analyst and the AIPAC employees abruptly unraveled when FBI agents paid Mr. Franklin a home visit on June 30, 2004. Appealing to his patriotism, they persuaded him to cooperate, telling him that the two lobbyists were up to no good, and might be endangering American interests. Perhaps even more persuasive was the FBI's discovery in his house of 83 classified documents--material he had taken to work on at home, as he had done repeatedly despite warnings from his Pentagon supervisors that this was impermissible.

---

He was to enjoy nothing of the good fortune of Sandy Berger, former National Security Adviser for President Clinton, who pleaded guilty in 2004 to making off with highly classified documents related to that administration's policy on terrorism--papers he was observed stuffing into his pockets while sitting in the secure reading room of the National Archives. Mr. Berger was charged with a misdemeanor and paid a $10,000 fine. Former CIA director John Deutch, who also faced charges of mishandling government documents, was pardoned on Mr. Clinton's last day in office.

Anguished, his wife ill, and faced with loss of his job--now a likely possibility, as the FBI informed him--Mr. Franklin agreed to help gather evidence on Messrs. Rosen and Weissman.

By Aug. 27, FBI agents apparently felt they'd gathered enough--enough, at least, to go public, via a leak to CBS's Lesley Stahl, about the Pentagon mole they had succeeded in unmasking. FBI investigators soon after informed a stunned Larry Franklin, who had cooperated with them without receiving any promise of consideration about those classified materials, that he now faced serious prison time. He would have been still more stunned had he known of the elaborately detailed indictment to come, charging him, among other allegations, with conspiracy to gather and unlawfully transmit national defense information. He had yet to appreciate what it meant that his alleged co-conspirators were lobbyists for AIPAC.

The tone of the CBS News story (Aug. 27, 2004) provided more than a few clues on this point. In a higher than usual state of excitement, Ms. Stahl announced that the FBI was, in agent terminology, about to "roll up" a suspected spy who had given classified information to Israel, and "at the heart of this, two people who work at AIPAC, the powerful pro-Israeli lobby." The investigators had "concerns," we learned: "Did Israel also use the analyst to try to influence U.S. policy on the war in Iraq?" The analyst, furthermore, had "ties to top Pentagon officials Paul Wolfowitz and Douglas Feith."

The entire investigation, with wiretaps, surveillance and photography, Ms. Stahl announced, had been headed up by the FBI's David Szady. It was a name she had reason to know well. This FBI luminary was the same agent who had headed another investigation--the subject, just two years earlier, of her own scathing "60 Minutes" report about the FBI's obsessive, confident, willfully blind pursuit of CIA counterintelligence agent Brian Kelley, whom the bureau suspected of being a Soviet mole in the late '90s.

While Mr. Szady and his agents persisted in pursuing an innocent man for three and a half years, solemnly citing evidence for their charges that would have done Inspector Clouseau proud (a hand-drawn map supposedly of the mole's site of operation turned out to be a map of Mr. Kelley's jogging routes through a park), the real mole continued to turn vital intelligence over to his KGB handlers. That mole was the FBI's very own Robert Hanssen, who had gone undetected thanks to Mr. Szady's insistence that his agents had the goods on Brian Kelley.

None of this history got a mention in Ms. Stahl's report on the new Szady investigation she'd been privileged to disclose, unlike the innuendo about the alleged spy's ties to those Pentagon officials, Messrs. Wolfowitz and Feith.

It was a mere hint of things to come. News of the spy story, it was clear, had brought new life to the obsessed. From quarters of the left and right, and not infrequently the mainstream media came, now, daily rumblings about the spy for Israel, his ties to neoconservatives in the administration, the influence and machinations of the neocons, their effort to push the war in Iraq. More than a few of these meditations on Israel, AIPAC and the power of the neocons bore a strong resemblance to a kind of letter that occasionally shows up in journalists' mailboxes. The sort that bring punctiliously drawn diagrams, cosmic in scope, with endless tiny boxes, and tinier labels, handprinted with a concentration only the deranged can summon, all intended to illustrate the sinister interconnectedness among certain institutions and persons--the president, the Pope, CIA, World Bank, the Association for Dental Implants and so on.

Steven Rosen, 63 at the time of his indictment in August of 2005, and Keith Weissman, age 53, both shortly thereafter lost their jobs at AIPAC, whose leadership was clearly alert to the disastrous potential in this case. AIPAC itself was not threatened with indictment, though suggestions of the behavior it would do well to follow were plain enough, as when government attorneys pointedly and repeatedly asked AIPAC's lawyer if the lobbyists still were employed there, and if the agency was still paying their health insurance and their legal fees. Not long after, the answer to all three was no. Mr. Rosen's attorney, Abbe Lowell, and Mr. Weissman's--John Nassikas and Baruch Weiss--are carrying their clients, who have by now racked up millions in legal fees.

In October 2005, with pro bono attorney Plato Cacheris at his side, Lawrence Franklin pleaded guilty--a decision he could not avoid making, given the indisputable proof of offense--to keeping classified documents at his home. His indictment charged much more--conspiring to communicate national defense information to persons not entitled to receive it, meetings with representatives of foreign nation A (Israel), and Messrs. Rosen and Weissman, cited as furtherance of a conspiracy. The former desk officer for Iran stood charged with conspiracy to "advance his own personal foreign policy agenda" and influence people in government. One Washington insider, hearing this, tartly noted that if all government officials who leaked material to effect policy changes were charged and convicted, the prisons would soon be packed.

The guilty plea brought a sentence of 12 years, seven months--not a light one. Mr. Franklin's hope for reducing it hinges on the cooperation he gives government prosecutors in the trial of the lobbyists. The role assigned him has from the beginning been noteworthy--a reversal of norms. Government officials don't normally get to take part in stings of ordinary citizens. But Mr. Franklin, an official with top security clearance, sworn to protect classified information, is the one asked to wear a wire to amass evidence against the two men with whom he has allegedly conspired. It usually goes the other way around. There is a reason that the government official caught taking a bribe is the object of the law's pursuit, rather than the citizen who has tried to pay him off--and why it is the citizen, crooked as he may be, who wears the wire and gets the possibility of a deal. That reason, of course, is the higher standard expected of those sworn to uphold their offices. If nothing else, the role assigned Mr. Franklin testifies to the government's singular focus on nailing the AIPAC lobbyists.

Even so it remains to be seen what help Mr. Franklin will give the prosecutors at the forthcoming trial of Messrs. Rosenvand Mr. Weissman. In the course of his guilty plea, the otherwise respectful Mr. Franklin forcefully objected to the government's characterization of the self-typed paper about Iran he'd faxed to Mr. Rosen--a document at the heart of one of the significant charges against the lobbyist--as "classified."

"It was unclassified," Lawrence Franklin told the court, "and it is unclassified."

The government would "prove that it was classified," announced the U.S. attorney.

Mr. Franklin: "Not a chance."

What chance the defendants--who asked no one for classified information--have of acquittal and the avoidance of prison remains to be seen. Though Judge T. S. Ellis rejected defense motions to dismiss the charges on constitutional grounds, his early rulings have so far shown a keen appreciation of the meaning this case. In this he stands in sharp contrast to the nation's leading civil rights guardians, these days busy filing lawsuits against the government and fulminating on behalf of the rights of captured terrorists in Guantanamo and elsewhere, while accusing the U.S. of failing to provide open trials and assurances that the accused have the right to view the evidence against them. As of this day neither the ACLU nor the Center for Constitutional Rights has shown the smallest interest in this prosecution so bound up with First Amendment implications. Nor has most of the media, whose daily work includes receiving "leaks" from government officials far more damaging to national security than anything alleged in this case. In this as in the Scooter Libby matter, the desire to see Bush Administration officials nailed apparently counts for more than First Amendment principle.

The government has also moved (in the interest of protecting classified information) to impose strict limits during the trial, on the testimony the public and press will be allowed to hear. If the proposal is allowed, significant portions of the testimony will be available only in the form of summaries. Witnesses, furthermore, would not be allowed to deliver certain testimony directly to jurors, who would instead be told to look at secret documents. It will be, as a member of the Reporters Committee For Freedom of the Press, now opposing the government efforts, describes it, "a secret trial within a public trial." (Dow Jones, publisher of this newspaper, has joined the Reporters Committee in filing an objection.)

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The prosecutors may in fact need all the help they can get in this trial, which, the judge has noted, concerns actions that go to the heart of First Amendment guarantees. Above all, the government will have to prove that those charged with disseminating classified information "knew that its disclosure could injure the national defense."

One of the charges against Mr. Rosen was that he enabled Mr. Franklin's illegal transmission of classified material. This occurred, according to the indictment, when Mr. Franklin said he wanted to fax a paper to Mr. Rosen, and asked for his fax number. Mr. Rosen's crime, the charge establishes, was in giving him that fax number. Such is the sort of crime for which he could get upwards of 20 years, and Mr. Weissman, 10. The document, whose classified status the government claimed it could prove, was in fact a single sheet typed by Mr. Franklin, consisting of eight bullet points stating the offenses of which Iran was allegedly guilty.

As Judge Ellis noted, the government didn't allege that the lobbyist ever asked for the document, or that it had any classification markings, or that Mr. Rosen ever even received or viewed the paper.

The consequences of this spectacle--the indictment of two citizens for activities that go on every day in Washington, and that are clearly protected under the First Amendment--far exceed any other in the now long list of non-crimes from which government attorneys have constructed major cases, or more precisely, show trials. A category in which we can include the mad prosecutorial pursuit of Mr. Libby.

The government could succeed in this prosecution of two non-government professionals doing what they had every reason to view as their jobs--talking to government officials and reporters, and transmitting information and opinions. If such activities can be charged, successfully, as a "conspiracy," every professional, every business, every quarter of society--not to mention members of the press--will have reason to understand that this is a bell that tolls not just for two AIPAC lobbyists, but also for countless others to face trials in the future, for newly invented crimes unearthed by willing prosecutors.

Ms. Rabinowitz is a member of The Wall Street Journal's editorial board.

from the Wall Street Journal via OpinionJournal.com, 2007-Feb-22, by Daniel Henninger:

Scooter Libby and Reputation
Prosecutions that wreak ruin on a lifetime.

"There used to be a time when big cases were investigated a different way in this country. Maybe something's gone horribly wrong."--Federal Judge Lewis A. Kaplan, 2006

The trial of I. Lewis "Scooter" Libby is the closest version of a Red Queen trial this country has had in a long time. One says that knowing it might start a stampede from past defendants laying claim to the most upside-down prosecution.

Lewis G. Carroll's account of the Knave' s trial before the Red Queen and White Rabbit is famous for the Queen's dictum, "Sentence first, verdict afterward." But read the full transcript of the mock trial and one will see that the real subject is not justice, but the humiliation of the defendant.

The trial of Scooter Libby in Washington, the national capital of illogic, has been exemplary. In December 2003, the prosecutor purports a crime has been committed by revealing a "covert" CIA agent's identity to the press--despite knowing then what the outside world learned nearly three years later--that the revealer of the agent was a State Department official, Richard Armitage. With the "whodunnit" solved on day one, the prosecution follows the Red Queen's script by taking the nation on a useless, joyless ride through the opaque looking-glass of Washington journalism.

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The testimony of three of the world's most sophisticated journalists--Judith Miller, Matthew Cooper and Tim Russert--was the trial's closest thing to the White Rabbit reading nonsense verse to the jury: "For this must ever be a secret, kept from all the rest, between yourself and me."

The Libby case went to the jury yesterday. After the verdict, all the characters in this satire on Beltway mores will go back to doing what they did before, except for one--Scooter Libby.

If found guilty, Mr. Libby goes to prison. He is ruined. If acquitted, he loses only that which he built daily the past 35 years of private and public life--his reputation. This, too, is ruin.

Purified justice notwithstanding, something here has gone "horribly wrong."

As is increasingly true of politics, American justice today has come to look more like mortal combat, the videogame. Notions of proportionality have eroded. Crimes that are minor crimes, civil offenses or mere hardball politics like the Plame case must be elevated to a capital offense. Eliot Spitzer's pursuit of AIG founder Hank Greenberg rose to a bonfire of never-proven criminal charges that put the torch to the company and Mr. Greenberg before burning down to its current ash of alleged civil offenses against him.

Under the constant stare of the media Cyclops, prosecutors can't back down and justice in 21st-century America degrades to swamp justice. Exhibit A: the Duke lacrosse-team prosecution. Judge Lewis Kaplan, in the federal government's recent KPMG prosecution, sat in appalled disbelief as federal prosecutors attempted to reduce 18 defendants to rubble.

It was ever thus that big cases produce drama that's hard to resist. Not least is the spectacle of a once-in-a-lifetime defendant, a Scooter Libby, virtually bankrupting himself to avoid guilt. Labor Secretary Ray Donovan's 1987 remark on acquittal will explain why unto eternity: "Which office do I go to to get my reputation back?"

No dramas will be written, though, about the aftermath for such a defendant. But maybe one should. Consider the case of Salim Lewis.

Thirty years ago on Wall Street, Salim "Sandy" Lewis was a household name. His father Salim co-built Bear Stearns, and he in turn made his reputation in the high-stakes corporate-merger cycle of the 1980s. He worked without legal or disciplinary taint until he was 49. In 1986 a federal prosecutor named Rudolph Giuliani indicted him for securities violations.

His accuser was Boyd Jeffries, the criminal acolyte of famed financial criminal Ivan Boesky. The case itself was arcane. Outraged at a short-selling practice legal at the time, Mr. Lewis urged Jeffries to engage in a stock transaction to thwart the short sellers. A subsequent court called what he did "an act of market vigilantism, in which Mr. Lewis in no way personally profited." And indeed the short-selling practice he attacked was later outlawed. Still, his own act was illegal.

Rudy Giuliani indicted him on 22 counts. He pleaded guilty to three, facing 15 years. Judge Mary Johnson Lowe reduced it to three years probation, an act of now-antique proportionality. The SEC got an injunction banning Mr. Lewis for life from the securities business; this was the core of a reputation the court record had shown steeped in good works. He sought to restore it.

In 2001, he received a pardon from President Clinton (later called "a bona fide pardon on the merits" by a federal judge). The SEC bar order remained. He again sought relief in court, and this past summer Judge William Conner of the Southern District (aka Wall Street) lifted the lifetime bar, saying "we cannot ignore the inequity inherent in the injunction." It took only 20 years.

Nor does innocence guard reputation. Back then prosecutor Giuliani flamboyantly arrested Richard Wigton (30 blameless years with Kidder, Peabody) and a youthful arbitrager named Timothy Tabor. They were handcuffed. Two years later, the charges against both were dropped. No matter. Both had been led through the media bonfire. They were ruined.

Some of this reputational destruction can be explained as random events--having the bad luck to draw a politically ambitious prosecutor (Messrs. Giuliani and Spitzer) or the fanaticism inherent to special prosecutors. But something more harsh and bitter is in the water now.

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Incredibly, Scooter Libby and Ray Donovan had the same lawyer, Ted Wells. So did Sandy Lewis then and KPMG today, Stanley Arkin. Mr. Arkin thinks it's worse now.

"We use the word 'criminal' very promiscuously" today, he told me. Legal standards and ethics require a neutral review up to the decision to indict, but too often, Mr. Arkin says, "You do not have neutral review. We get a poor quality of magisterial review in this country."

It is a travesty that the Valerie Plame bump-and-run case brought Lewis Libby to the edge of this cliff. Primary blame belongs to the Bush Justice Department's abdication of responsibility. So now a former Manhattan prosecutor is running for president. Electoral vagaries willing, one can think of no one better qualified to restore the meaning of "criminal" to its proper intent.

Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Thursdays in the Journal and on OpinionJournal.com.

from the Wall Street Journal via OpinionJournal.com, 2007-Jan-11, by Dorothy Rabinowitz:

The Michael Nifong Scandal
The Duke rape hoax is redolent of past decades' phony child-abuse cases.

No one could have imagined, when the story began last March, how soon and completely that bit of shorthand--"the Duke University scandal"--would be transformed.

Scarcely 10 months after, the term is now almost universally understood as a reference to the operations of Michael Nifong, the Durham County district attorney (pictured nearby), whose abandonment of all semblance of concern about the merits of the rape and assault accusations against three Duke University students was obvious from the first. So was his abundant confidence while broadcasting comments on the guilt of the accused. He seemed a man immune to concerns for appearances as he raced about expounding on the case against the accused lacrosse players and calling them hooligans. He would hear nothing by way of concern from Duke administrators (seven months into this affair, the university president did find an opportunity to mention the accused students' right to a presumption of innocence)--and certainly none from the politically progressive quarters of the Duke faculty who lent their names to an impassioned ad thanking everyone who had come out to march in protest against the rape and assault of the exotic dancer; 88 faculty members signed it, among them such Duke luminaries as Alice Kaplan, author and student of fascism, and Frank Lentricchia, literary critic.

Unable to take part in the ad signing, Duke's administrators nonetheless found ways to identify with its spirit. Soon after news broke of the Duke athletes' alleged brutish sex crimes against a black woman, the administration undertook a well-publicized campaign targeting the entire lacrosse team fo