by TChris

The Supreme Court heard argument today about the administration's authority to detain without counsel or trial American citizens accused of being enemy combatants. You can listen to the arguments here (Hamdi) and here (Padilla).

From the argument by Jennifer Martinez on behalf of Jose Padilla:

"We've had war on our soil before, and never before in our nation's history has this court granted the president a blank check to do whatever he wants to American citizens."

From the argument by Frank Dunham on behalf of Yaser Esam Hamdi:

"We have never authorized detention of a citizen in this country without giving him an opportunity to be heard, to say, 'Hey, I am an innocent person."

Justice O'Connor, often the swing vote, voices doubt about the Bush position:

"But have we ever had a situation like this where presumably this warlike status could last for 25 years, 50 years, whatever it is?"

Denying that courts should have any oversight authority over the executive's desire to do as it pleases with those it tags as enemy combatants, the government's lawyer assured the court that the president would always make appropriate decisions. Justice Ginsberg wondered whether it is wise to be so trusting as to give a president unlimited power. Cross your fingers that four of her colleagues see her point.

The Washington Post today opines on the defeat of the Victim's Rights Amendment to the Constitution, and the (in our view) unwise provision contained in the Senate's new Victim's Rights legislation that would allow victims to go to federal appeals courts to enforce their rights under the law:

A constitutional amendment on this subject was never necessary -- unless, that is, the goal was to diminish protections for the accused in criminal trials. Congress can provide for victims anything that doesn't infringe upon defendants' trial rights, using its normal legislative powers. The new bill would guarantee them the right in federal cases to notice of public proceedings, to be protected from the accused, to attend proceedings, to confer with prosecutors, to receive restitution from the perpetrator and to be otherwise treated "with fairness and with respect for the victim's dignity and privacy." Such protections are actually not new; current law is, broadly speaking, similar. What is new is that the law would have an enforcement mechanism: It would allow victims to go to federal appeals courts to force trial judges who ignore their rights to respect them.

This is a potentially troubling provision; it will probably -- particularly at first -- spawn a great deal of litigation as victims seek to intervene in pending criminal cases, prosecutors seek to preserve their own latitude to try cases in ways that best serve the government's interests, and defendants seek to ensure that their constitutional rights are not compromised. Granting victims standing in court whenever they feel their "dignity and privacy" have been disregarded could prove troublesome for prosecutors.

But at least the Senate, by writing these rules into a statute instead of into the Constitution, has preserved the critical principle that the rights of defendants -- whose liberty the state is seeking to take away -- must trump whatever accommodations the government offers to victims, in the event that the two cannot be reconciled. The statutory route lets Congress tinker further if the balance proves imperfect, and it largely avoids compromising the fairness of trials.

by TChris

The Bush administration is hostile to traditional notions of oversight and accountability. TalkLeft has called attention -- most recently, here, here and here -- to the administration's efforts to persuade the Supreme Court that it should be able to detain both citizens and non-citizens indefinitely, without access to courts or lawyers and without judicial oversight, so long as the President thinks it is in the interest of national security to do so.

On Tuesday, the administration will again appear before the Supreme Court to argue against oversight -- this time, against both Congressional and judicial oversight of its duty to disclose the identities of persons outside the government who advised Dick Cheney's energy task force in 2001. The administration claims the Federal Advisory Committee Act that requires such discloslures doesn't apply to Cheney's task force, but argues that even if the law applies, it unconstitutionally intereferes with the President's ability to formulate proposed legislation.

So much for checks and balances. As those arguing against the administration point out, requiring an administration to disclose its outside advisors promotes open government -- a goal that might interfere with a desire for secrecy, but that doesn't inhibit the President's ability to craft legislative proposals.

Congressional Quarterly (paid subscription only) is reporting that the Victims' Rights Amendment is dead--the proponents have abandoned their attempt to pass a constitutional amendment and instead will try to pass a law applicable to victims rights in federal cases.

Supporters of a long-stalled constitutional amendment that would guarantee
rights for crime victims are at least temporarily conceding defeat and planning to back alternative language that would spell out such rights in a statute. New legislation (S 2329) agreed upon late Wednesday by constitutional amendment sponsors Dianne Feinstein, D-Calif., Jon Kyl, R-Ariz., and others, is scheduled for Senate floor debate and passage on Thursday.

Final details of the bill were not available, but Democratic Senate aides
said Wednesday that the compromise would likely include language that would
give victims or their representatives the right to be heard at public release, plea sentencing and other proceedings and would require judicial officials to take victims' safety into account when deciding the fate of defendants. The compromise is also expected to authorize federal grants for crime victims.

A law is a lot easier to change or repeal than a constitutional amendment. Wise choice. We hear there are some problematic provisions in the planned law, but we'll save that for another day. Right now we're just thrilled that the VRA is dead.

Update: The AP reports:

Feinstein and Kyl had to sacrifice a proposed victims' rights constitutional amendment to get the bill through the Senate. A constitutional amendment would have required all states to follow the federal government's wishes. The bill passed by the Senate would only apply to federal crimes and federal courts.

The latest former politician to blast the Victims' Rights Amendment is none other than former Congressman Bob Barr:

The circus is back in town. Every two years, as we roll around to another grand Olympics of federal, state and local elections, the hopper in Congress begins to fill up with dangerous and unnecessary amendments to our U.S. Constitution.

...In the American political system, the Constitution was meant to operate like people who freeze their credit cards in a block of ice. That is, when faced with supremely important and emotional decisions involving things like the censorship of unpopular ideas or the seizure of firearms, the Constitution makes us walk to the corner and take a time out.

As to the Victims' Rights Amendment, Barr correctly notes:

Prometheus calls this statement by Justice Scalia the "The single most frightening statement ever made by a Supreme Court justice."

The electronic media have in the past respected my First Amendment right not to speak on radio or television when I do not wish to do so," he wrote, "and I am sure that courtesy will continue."

Prometheus says,

First Amendment right not to speak? The man is confusing the First Amendment with the Miranda decision! Let's see exactly what the First Amendment says:

On April 23, the Senate will consider the proposed Victims' Rights Amendment (VRA) to the U.S. Constitution (S. J. Res. 1). Below is the text of the action alert we received from National Association of Criminal Defense Lawyers Legislative Director Kyle O'Dowd.

Action Requested: Contact your Senators and urge them to oppose this dangerous measure. Encourage your local prosecutors to do the same. Remember that many Senators will soon be arriving in their home states for spring recess (which lasts until April 16), and face-to-face meetings may be possible. Contact information for Members of Congress is available at here.

Background: The Victims’ Rights Amendment was approved 10-8 by the Senate Judiciary Committee on September 4, 2003. On the House side, the Constitution Subcommittee held a hearing regarding the VRA on September 30, 2003. The latest version of the proposed Victims’ Rights Amendment would give victims of violent crimes : (1) the right to notice of proceedings involving the alleged crime and of prisoner release or escape; (2) the right not to be excluded from proceedings involving the alleged crime and, with respect to certain proceedings, the right to be heard; and (3) the right to "adjudicative decisions" that consider the victim's safety, interest in avoiding delay, and claim to restitution.

The VRA’s sweeping, unfunded mandates would diminish the constitutional rights of accused persons and wreak havoc on our criminal justice system. Specifically --

Someone must have hijacked Kevin Drum's Washington Monthly blog today, because we can't believe Kevin would say this:

I'd like to see videotaping required for all police interviews, and in return I'd suggest that the 5th Amendment right against self-incrimination be discarded. If police interviews are all recorded and trials are all held in public, it's not at all clear to me what value the 5th Amendment right to silence has anymore....with Star Chambers a thing of the past and videotaping preventing coerced confessions, I really do wonder if the self-incrimination clause of the 5th Amendment has enough value left to make it worth the problems it causes. I suspect it doesn't.

Where's the Kevin we thought we knew? [hat tip to Kikuchiyo News]

Update: Nick at DeNovo offers some analysis.

by TChris

Did you leave your lawyer's business card on your car's dashboard next to a plastic Jesus? Don't exceed the speed limit, or the officer who pulls you over to write a ticket may want to search your car to determine whether you're a terrorist or drug dealer.

In a friend-of-the-court brief filed with the United States Supreme Court, the Illinois Association of Chiefs of Police argued that police should be allowed to use dogs to sniff any vehicle stopped for a traffic violation. Prohibiting the sniffing, they say, "threatens to undermine the government's war on terror, which relies on canines to sniff vehicles and luggage for narcotics and explosives at large gatherings or at transportation centers such as our nations' airports."

But why do the police have any reason to think that a guy who is stopped for driving 37 in a 35 mile-per-hour zone is a terrorist or drug dealer?

[M]any police agencies have developed anti-drug programs in which officers are trained to read the faces of drivers they pull over and to inspect their cars for such telltale signs of possible drug dealing as zippered plastic bags and lawyers' business cards, the police chiefs' brief explained. Police are trained to view even religious paraphernalia with a jaundiced eye because it is "sometimes used to divert suspicion," the brief noted.

The Supreme Court has already ruled that sniffing luggage in an airport doesn't constitute a search, but the question here isn't whether a search occurred, but whether a detention for a traffic violation was impermissibly lengthened so that officers could bring a dog to the scene after the driver refused to consent to a search of the car. Why did the officer want to search? Because the driver said he was driving from Las Vegas to Chicago, but was wearing a business suit.

If clothing, business cards, facial expressions, and religious paraphernalia can justify lengthening the time it takes to write a ticket so that a dog can sniff a car, there's no stopping point to the creative reasons officers will find to intrude on the privacy of drivers. Claiming that drug dogs are fighting the war against terrorism is a cheap attempt to win support for a policy that increases police power beyond the limits of the Fourth Amendment.

by TChris

A police officer sees a car with a license plate that is registered to a different car. Before the officer can stop the driver to write a ticket, the driver parks the car. The officer parks and the driver walks toward the officer. The officer points out the license plate problem, and the driver says someone just gave him the car. The driver, not a man of brilliance, agrees to be searched, and the officer finds drugs. Can the officer search the car?

The Supreme Court heard arguments in the case today. Useful background on Thornton v. United States is here.

At first glance, this is ridiculous. Upon reflection, it's scary. We reprint it only to show you how important it is to protect our Fourth Amendment:

British police used a giant X-ray machine to check for drugs and guns in raids on two London pubs, the BBC reported Saturday. Thirty four suspects were arrested by police who used a 7-foot high X-ray machine outside the two pubs. Suspects had the choice to be scanned or strip searched - officials said most people chose the X-ray. The scan shows anything hidden under one's clothes, including metal, plastic or ceramic guns, wooden clubs, explosives or drugs. Scotland Yard said the arrests were for offences that included possession with intent to supply drugs, possession of an offensive weapon, credit card fraud and immigration violations.

The Tenth Circuit Court of Appeals joins a growing number of circuits in holding that the Second Amendment does not confer an individual right to bear arms (pdf). For those who haven't read it lately, the Second Amendment says:

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

The court reaffirms prior decisions holding that:

...to prevail on a Second Amendment challenge, a party must show that possession of a firearm is in connection with participation in a “well-regulated” “state” “militia.”.... The Second Amendment does not guarantee an individual the right to keep and transport a firearm where there is no evidence that possession of that firearm was related to the preservation or efficiency of a well-regulated militia.

The Court notes that the 5th Circuit (which includes Texas) is the only circuit to hold the Second Amendment conveys an individual rather than collective right to bear arms. In the Emerson case in the 5th Circuit,

The Second Amendment “protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms.”

Here's where the other circuits stand: