US Supreme Court Nears Crucial Abortion Ruling
By Suzanne Goldenberg for The Guardian UK.
The US supreme court moved a step closer yesterday to taking up its first case on abortion since the appointment of two judges of President George Bush's choosing, after two federal appeals courts ruled that a ban on a termination procedure was unconstitutional.The rulings, in courts in California and New York, were handed down on Tuesday, the same day that the deeply conservative Samuel Alito was sworn in as a supreme court justice, and underlined how quickly his appointment could change federal abortion law.
"This is likely to be the next abortion case before the court and probably the first one Alito will hear," said Lorraine Kenny, a spokeswoman for the American Civil Liberties Union, which fought the case in New York. "We are concerned."
Both rulings said the ban on the procedure, which involves partly removing an intact foetus from the body after the first trimester before aborting it, was unconstitutional because it failed to provide an exception when alternative methods could endanger the woman's health.
The ban, which was signed into law by President Bush in 2003 but never enforced because of legal challenges, would make what the anti-abortion movement calls partial birth abortion punishable by up to two years' jail for doctors who carry it out.
In a unanimous ruling, the court in San Francisco said the law placed an unfair burden on a woman's right to an abortion, and put doctors at risk of criminal liability for virtually all abortion procedures after the first 12 weeks of pregnancy...
The twin rulings make it increasingly likely that the federal ban on the procedure would be the next abortion case before the US supreme court, and the first that Justice Alito will hear. The issue is already before the supreme court after a court in Missouri became the first to strike down the ban by Congress last year.
here's the whole text of the entire article in case the link goes bad:
http://www.guardian.co.uk/international/story/0,,1700001,00.html
Also available at truthout.org:
http://www.truthout.org/issues_06/020306WA.shtml
US Supreme Court Nears Crucial Abortion Ruling
By Suzanne Goldenberg
The Guardian UK
Thursday 02 February 2006
Washington - The US supreme court moved a step closer yesterday to taking up its first case on abortion since the appointment of two judges of President George Bush's choosing, after two federal appeals courts ruled that a ban on a termination procedure was unconstitutional.
The rulings, in courts in California and New York, were handed down on Tuesday, the same day that the deeply conservative Samuel Alito was sworn in as a supreme court justice, and underlined how quickly his appointment could change federal abortion law.
"This is likely to be the next abortion case before the court and probably the first one Alito will hear," said Lorraine Kenny, a spokeswoman for the American Civil Liberties Union, which fought the case in New York. "We are concerned."
Both rulings said the ban on the procedure, which involves partly removing an intact foetus from the body after the first trimester before aborting it, was unconstitutional because it failed to provide an exception when alternative methods could endanger the woman's health.
The ban, which was signed into law by President Bush in 2003 but never enforced because of legal challenges, would make what the anti-abortion movement calls partial birth abortion punishable by up to two years' jail for doctors who carry it out.
In a unanimous ruling, the court in San Francisco said the law placed an unfair burden on a woman's right to an abortion, and put doctors at risk of criminal liability for virtually all abortion procedures after the first 12 weeks of pregnancy.
The ruling from the New York court was less of a victory for the abortion rights movement, with an unusually sharp dissent from one judge and a rebuke from the chief judge, John Walker. Mr. Walker overturned the ban, but called the abortion procedure "morally repugnant." He called on the supreme court to issue a ruling that would require opponents of the ban to demonstrate how it would harm women.
The twin rulings make it increasingly likely that the federal ban on the procedure would be the next abortion case before the US supreme court, and the first that Justice Alito will hear. The issue is already before the supreme court after a court in Missouri became the first to strike down the ban by Congress last year.
Today's the day you can "do something" about what's starting to look like an easy rubber stamp for Alito.
Go to http://www.nocrony.com/ to look up your local senators and give them a call *and* send them an email urging them to Filllibuster his nomination.
This show takes a shot at explaining the similarities between the landmark Universal vs. Sony (Betamax) case of 1984 and the current MGM vs. Grokster case that went in front of the Supreme Court last summer.
I only touch upon it briefly in my show. There's a more complete explanation on the website.
The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It's what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush "believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others."Unfortunately, when the Supreme's had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else - to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.
The court basically said there were two types before (contributory and vicarious) and now there's a new, third kind, called "inducement." That's what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.
So there used to be just two kinds of "indirect" infringement, vicarious and contributory.
"Vicarious" is when you're supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)"Contributory" infringement is where you're supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there's a third, where I intend to make you infringe and take active steps to encourage it. That's the test laid out by the decision...
Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.
Here is the full text of the article in case the link goes bad:
http://www.mondoglobo.net/thecommons/?p=11
A Better Introduction to Grokster - A Modern Day Sony Betamax Case
In this week's installation of The Grokster Chronicles, I will explain how the Grokster case is really just a modern day revisiting of the principles of the historical Betamax case. The "Betamax" case refers to Universal vs. Sony, in which the Supreme Court decided that a company was not liable for creating a technology that some customers may use for copyright infringing purposes, so long as the technology is capable of substantial non-infringing uses. Said another way, the court decided that, when a technology has many uses, the public cannot be denied the lawful uses just because some (or many or most) may use the product to infringe copyrights.
{{{MP3}}}
{{{MP3}}}
The court weighed the substantially positive noninfringing fair use right of a family being able to timeshift a program and watch it together later against the potential misuse of a person making 300 copies of the television program and selling them (piracy). Keeping this definition in mind, it becomes easier to understand how such judgements clearly apply to the Grokster case. Within the millions of files traded over a Kazaa-based P2P network, some infringe, while others clearly do not.
The point then, and now, is that, historically, in this country, we choose to criminalize the misuse of a technology, rather than criminalizing the technology itself. Guns, for example, are only made for killing. Killing and maybe target practice. It's what they do. Depending on the circumstances surrounding when the killing takes place, such killing is legal or not. But do we hold gun manufacturers responsible for when gun technology is misused? Of course not. The concept is comical. In fact, legislation was recently passed to protect gun manufacturers from such liability. According to White House Press Secretary Scott McClellan, even President Bush "believes that the manufacturer of a legal product should not be held liable for the criminal misuse of that product by others."
Unfortunately, when the Supreme's had a chance to decide MGM vs. Grokster on these grounds, it chose to do something else - to avoid these issues entirely, and create a new kind of indirect infringement: active inducement. Active Inducement takes place if someone intends to make another person infringe and then takes active steps to encourage it.
The court basically said there were two types before (contributory and vicarious) and now there's a new, third kind, called "inducement." That's what the court sent back to the Central District of California Court (9th Circuit) to determine if the defendants were actively inducing infringement.
So there used to be just two kinds of "indirect" infringement, vicarious and contributory.
"Vicarious" is when you're supervising people and making money from it, like at the Flea Market, if the owners of the Flea Market knew that stolen goods were being sold there. (A CA court ruled that Napster did this.)
"Contributory" infringement is where you're supplying the means with knowledge that it will be used illegally. Like if I rented a bunch of CD burners to a bootleger and knew what he was going to do with them. Now, after Grokster, there's a third, where I intend to make you infringe and take active steps to encourage it. That's the test laid out by the decision.
The trouble with the supremes defining a new type of indirect infringement is that it leaves the questions of "vicarious" and "contributory" infringement wide open, as well as the test of "substantial non-infringing uses" given to us in the Betamax decision. (So no one knows what the rule would have been on those.)
The opinion also contained two "concurrences." What are concurrences? Well, in a formal ruling, there is a majority opinion which lays down the law. It includes what is called a "holding" -- what the court held the law to be. Then there are secondary opinions included in the ruling when judges want to add commentary. They are either "concurrences" (which agree with the holding but perhaps for different or additional reasons) or "dissents" (which disagree with the holding and reasoning of the majority).
Typically, with concurrences, they are sections that the majority didn't support. In Grokster, you had the majority 9-0 but each concurrence only had 3 votes. If either had gotten 5 votes, it would have been part of the majority. Although these two concurrences conflict with each other, the judges writing them agreed generally on the opinion (unanimously in fact).
So, for the two concurrences that received three votes each, one said that the Sony Betamax test of "substantial non-infringing uses" was more than satisfied. The other said that Sony should be revisited and overturned.
So you may say "well, it would certainly be hard to prove that, until you look at the decision a bit closer. In Grokster, the supreme court said that even using the name "-ster" as in Grokster showed intent to induce infringement, because it was similar to Napster.
The tech community knows that "ster" doesn't have this kind of meaning at all. It's more like a name for doing fun things -- Friendster, a social network and Feedster, and RSS syndication feed service, certainly have nothing to do with contributory copyright infringement. Google's Gmail even uses "ster" as their default name suggestion when someone tries to get an email address and their name on its own is taken, rather than applying a number to the end.
This kind of confusion about technology and computer culture means it will be easier to sue companies and imply that they are encouraging people. Then its costly to defend -- because you're going to have to go to trial every time, costing you millions. You may win eventually, but who cares by then, because you're out of business.
And what does this mean to the average consumer? It means that you're not going to get as much new cool technology, and when you do get it, it's going to cost you more because of the added legal risks now associated with software development in general.
Note: Although there was a development last week in MGM vs. Grokster, where Grokster settled, agreed to shut down, and agreed to pay $59 million in damages, Grokster was not the only named defendant in the case. StreamCast, Sharman Networks (distributor of Kazaa), and the founders of Kazaa are still in litigation.
Special Thanks to Jason Schultz at the EFF for double checking the technical accuracy of my legal analysis.
Songs
1.
Slipping Away v. 2.0 Studio
by Lisa Rein.
http://www.lisarein.com/slippingaway2.0.html
Available under an Attribution 1.0:
http://creativecommons.org/licenses/by/1.0/
2.
one moment (cdk play it cool mix)
by cdk
http://ccmixter.org/media/files/cdk/2884
Available under the: Attribution Non-commercial Share Alike v 2.5 license:
http://creativecommons.org/licenses/by-nc-sa/2.5/
uses samples from:
midnight bliss dub samples by cdk
Moment of Green by Antony Raijekov
Blues and misc by Burnshee Thornside
3.
"Wake Up" from The Time is Now
by Inna Crisis
http://www.jamendo.com/album/352/
Attribution Non-commercial Share Alike v. 2.0:
http://creativecommons.org/licenses/by-nc-sa/2.0/
4. Theme Song to this show - “Unison” by dissent - from the upcoming Primal Deconstruction CD/LP. The track and an in has been pre-released by Wide Hive Records under a Creative Commons Attribution-Non-commercial-No Derivs license. http://www.widehive.com/unison.html
5.
Patrick Fitzgerald Announcing the Scooter Libby Indictments
Scoop
http://www.scoop.co.nz/stories/HL0510/S00315.htm
Resources
1. EFF's page on the Grokster case:
http://www.eff.org/IP/P2P/MGM_v_Grokster/
2. EFF's page on the Betamax case:
http://www.eff.org/legal/cases/betamax/
3.
Shoot someone? Not Smith & Wesson's fault. Copy a movie? Grokster's fault.
by RadicalRuss for the Daily Kos.
http://www.dailykos.com/story/2005/7/26/2160/13925
And off in the distance, we see a tiny glimmer of hope, and my faith in the system is temporarily renewed. (For an instant...)
Supreme Court Affirms Detainees' Right to Use Courts
By David Stout for the NY Times.
The Supreme Court ruled today that people being held by the United States as enemy combatants can challenge their detention in American courts — the court's most important statement in decades on the balance between personal liberties and national security.The justices declared their findings in three rulings, two of them involving American citizens and the other addressing the status of foreigners being held at the Guantánamo Bay Naval Base in Cuba. Taken together, they were a significant setback for the Bush administration's approach to the campaign against terrorism that began on Sept. 11, 2001.
"Due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," Justice Sandra Day O'Connor wrote. She and seven other justices held that the detention of Yaser Esam Hamdi, a native-born United States citizen seized in Afghanistan in 2001, was invalid for constitutional or statutory reasons. Only Justice Clarence Thomas dissented from that basic position.
Justice O'Connor wrote that the campaign against terrorism notwithstanding, "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
In the Guantánamo case, the court ruled, 6 to 3, that federal courts have the jurisdiction to consider challenges to the custody of foreigners. The finding repudiated a central argument of the administration.
Here is the full text of the article in case the link goes bad:
http://www.nytimes.com/2004/06/28/politics/28CND-SCOT.html?hp
Supreme Court Affirms Detainees' Right to Use Courts
By DAVID STOUT
Published: June 28, 2004
WASHINGTON, June 28 — The Supreme Court ruled today that people being held by the United States as enemy combatants can challenge their detention in American courts — the court's most important statement in decades on the balance between personal liberties and national security.
The justices declared their findings in three rulings, two of them involving American citizens and the other addressing the status of foreigners being held at the Guantánamo Bay Naval Base in Cuba. Taken together, they were a significant setback for the Bush administration's approach to the campaign against terrorism that began on Sept. 11, 2001.
"Due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," Justice Sandra Day O'Connor wrote. She and seven other justices held that the detention of Yaser Esam Hamdi, a native-born United States citizen seized in Afghanistan in 2001, was invalid for constitutional or statutory reasons. Only Justice Clarence Thomas dissented from that basic position.
Justice O'Connor wrote that the campaign against terrorism notwithstanding, "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
In the Guantánamo case, the court ruled, 6 to 3, that federal courts have the jurisdiction to consider challenges to the custody of foreigners. The finding repudiated a central argument of the administration.
"Aliens at the base, like American citizens, are entitled to invoke the federal courts' authority," Justice John Paul Stevens wrote for the majority. "United States courts have traditionally been open to nonresident aliens."
The dissenters were Chief Justice William H. Rehnquist and Justices Thomas and Antonin Scalia.
And in the other case involving an American citizen, José Padilla, the court ruled on what at first glance was a technical issue: that Mr. Padilla filed his habeas corpus petition in the wrong court. A 5-to-4 majority said he should have filed in federal court in South Carolina, since he has been held in a brig in Charleston, rather than in the Southern District of New York.
The majority said, too, that the proper target for his case is not Defense Secretary Donald H. Rumsfeld but, rather, Cmdr. Melanie Marr, who is in charge of the brig. "This rule serves the important purpose of prevent forum shopping by habeas petitioners," the majority held.
Chief Justice Rehnquist wrote the opinion, joined by Justices O'Connor, Scalia, Thomas and Anthony M. Kennedy. Justices John Paul Stevens wrote an emotional dissent that was joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Justice Stevens wrote that there was ample precedent for finding that the Southern District of New York, where a material-witness warrant was first issued for Mr. Padilla, was the proper court to take up the case, and he lamented that the majority seemed to sidestep the main issues.
"At stake in this case is nothing less than the essence of a free society," Justice Stevens wrote. "For if this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."
The American Civil Liberties Union called the rulings historic and said they embodied "a strong repudiation of the administration's arguments that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts."
Representative Jerrold Nadler of New York, ranking Democrat on the House Judiciary Committee's subcommittee on the Constitution, "reaffirms that even in a time of war, the president does not have the authority to act as a tyrant."
Although the cases of Mr. Hamdi, Mr. Padilla and the Guantánamo detainees all arose from the terror attacks of Sept. 11, 2001, and weighed national security against personal liberty, they were considerably different from one another in circumstances.
Supreme Court Affirms Detainees' Right to Use Courts
Published: June 28, 2004
(Page 2 of 2)
The Guantánamo case involved foreigners: about 600 men of various nationalities seized in Afghanistan and Pakistan during operations against the Taliban; 16 of the detainees, all maintaining their innocence, filed suit. Their case, Rasul v. Bush, No. 03-334, named for the detainee Shafiq Rasul, was argued before the justices on April 20.
Besides the basic issue in their case, there was a secondary but still vital question involving the status of Guantánamo Bay itself.
Since a 1950 Supreme Court case has been interpreted to mean that enemy combatants held outside the United States have no right to habeas corpus, the detainees had to show through their lawyers that Guantánamo Bay is functionally, if not formally, part of the United States.
On the one hand, a long-ago treaty with Cuba said that it retained sovereignty over the base. On the other hand, the treaty also said that the United States exercised jurisdiction and control.
In any event, the United States Court of Appeals for the District of Columbia Circuit ruled last year that the federal courts lacked jurisdiction to hear habeas corpus petitions from the detainees — a position that the Supreme Court rejected today.
The majority noted that the 1950 case cited by the administration involved German citizens captured by United States forces in China, then tried and convicted of war crimes by an American military commission in Nanking, and finally imprisoned in occupied Germany.
In contrast, the Supreme Court majority noted today, the Guantánamo detainees are not only held in territory arguably under United States control but they also have not had their guilt or innocence determined, unlike the Germans of a half-century ago, and have been held without formal charges.
Justice Scalia's dissent, joined by Chief Justice Rehnquist and Justice Thomas, was as emotional in tone as was Justice Stevens's dissent in the other direction in the Padilla case. The majority's holding in the Guantánamo case was so reckless as to be "breathtaking," Justice Scalia asserted.
Justice Scalia went on to declare that the majority's position needlessly upset settled law, and was particularly harmful in a time of war. "The commander in chief and his subordinates had every reason to expect that the internment of combatants at Guantánamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs," he wrote.
As for the Hamdi and Padilla cases, although they both involve American citizens, the similarities largely end there. For one, Mr. Hamdi was captured in Afghanistan, where the Bush administration contends he was fighting for the Taliban. (His father asserted that he had gone to Afghanistan to do relief work.) Mr. Padilla was arrested at O'Hare Airport in Chicago.
Their cases, Hamdi v. Rumsfeld, No. 03-6696, and Rumsfeld v. Padilla, No. 03-1027, were argued together on April 28, having reached the Supreme Court by opposite paths.
Mr. Hamdi's lawyers were appealing a ruling by the United States Court of Appeals for the Fourth Circuit, in Richmond. That court held last year that Mr. Hamdi was entitled to challenge his detention by petitioning for a writ of habeas corpus. But the Fourth Circuit dismissed his petition after holding that the government had provided ample justification for classifying him an enemy combatant.
In the Padilla case, the government brought the appeal to the Supreme Court in hope of overturning a ruling by the United States Court of Appeals for the Second Circuit, in New York City. Citing a law passed by Congress in 1971 to prohibit the detention of citizens without explicit authorization by Congress, the Second Circuit found that the president was without authority to detain Mr. Padilla, despite the Congressional resolution authorizing military force after the Sept. 11 attacks.
Hope I can make it. I wanted to let you guys know about it.
CAN THE RIGHTS OF THE PEOPLE SIMPLY DISAPPEAR BY PRESIDENTIAL ORDER?NO TO THE "ENEMY COMBATANT" STATUS!
WHEN: TUESDAY, APRIL 20TH, 12 NOON
WHERE: FEDERAL BUILDING, SAN FRANCISCO, GOLDEN GATE & POLK
WHAT: PRESS CONFERENCE IN SOLIDARITY WITH THE DEMONSTRATION AT THE SUPREME COURT IN WASHINGTON D.C., WHERE ORAL ARGUMENTS WILL BE HEARD ON BEHALF OF GUANTANAMO BAY PRISONERS BEING HELD AS "ENEMY COMBATANTS"
Press contacts: 510-610-7070 or 510-684-8270
General information: Larry, 510 684-8270
Bay Area participants and endorsers:Bob Kearney of ACLU of No. California
American Muslim Voice
Blue Triangle Network
California Interfaith Alliance For Prison Reform
Cecilia Chang of Justice for New Americans*
Global Exchange
Grace Shimizu, Japanese American Community organizer
Gray Panthers
Stacy Tolchin, National Lawyers Guild, Immigration Committee
Not In Our Name
Riva Enteen, Chair KPFA Board*
Refuse and Resist
Reverend Michael Yoshi, Buena Vista Methodist Church*
Sara Olson, Indep. Radio Journalist, author of "Under Attack" 30 min. audio documentary
about attacks on the Muslim, Arab, S. Asian community
Shashi Dalal, Board of Trustees, *Fellowship Church
Rev. Dorsey O. Blake, Sr. Pastor* Organizations mentioned for identification purposes.
Below is a national call and a list of national endorsers for actions
at the Supreme Court in opposition to the use of Guantanamo Bay as a torture center/prison camp and against the ability of the president to designate persons, including citizens, as in the cases of Yaser Hamdi and Jose Padilla, as 'enemy combatants' and then lock them away incommunicado indefinitely without charges or judicial review:Can the Rights of People Simply Disappear by Presidential Order?
What does it mean when the President of the United States can on his own designate a citizen in the U.S. as an "enemy combatant" and order the military to hold that person incommunicado, indefinitely, and without charges? The U.S. Supreme Court is now deciding whether the courts even have the right to question the President's action.
What does it mean when the U.S. military internationally can literally snatch people off the street, designate them as "enemy combatants," and assert that they are beyond the reach of either U.S. or international law? Many are transported to a facility under total U.S. control and funded by Congressional appropriations, where they are held incommunicado, indefinitely, without charges, and some are threatened with trials before a military commission that falls short of basic standards of justice.
If the Supreme Court upholds these actions, it will condone the President's claim of virtually unlimited "wartime powers" without a formal declaration of war by the Congress, and with no or extremely limited oversight by the courts or the Congress.
On April 20 the U.S. Supreme Court will hear oral arguments on the President's alleged right to create a "law free zone" at the Guantánamo detention center in Cuba. And on April 28, the Court will hear oral arguments on the President's asserted right to designate citizens as "enemy combatants," hold them at the U.S. Navy base in Charleston, SC, and deny them the ability to challenge the lawfulness of their detention.
We believe that the President cannot be allowed to create a "legal Black Hole" into which people are dropped with no recourse to the courts or to international law. Among us we hold many varied views on how and why this situation has arisen and what is ultimately needed to ensure justice. But we all agree that this dangerous new presidentially designated category of "enemy combatants" who have no legal rights is unjust, illegal, and immoral, and cannot be allowed to stand.
The silence over this perilous issue must be broken, and public opposition must be manifested. Join us in front of the U.S. Supreme Court on April 20 and April 28 to declare a resounding NO!
Our future and the future of hundreds of anonymous detainees now hang in the balance. This is a watershed event in history. What is at stake is just how much the President will be allowed to get away with. Your silence will be taken as assent.
[list in formation]
American Friends Service Committee
Amnesty International USA
Bill of Rights Defense Committee
Blue Triangle Network
Cambios Planetarios
Community Solutions Foundation Trust, LLC.
Council on American-Islamic Relations
Equal Justice USA/Moratorium Now!
First Amendment Foundation
Freedom Socialist Party
Guantanamo Human Rights Commission
La Resistencia
Muslim Civil Rights Center
National Committee Against Repressive Legislation (NCARL)
National Lawyers Guild
Oct. 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation
Pax Christi USA
Refuse & Resist!
Solidarity USA
This just in from:
Amnesty International USA
Bill of Rights Defense Committee
Blue Triangle Network
First Amendment Foundation
Guantanamo Human Rights Commission
National Committee Against Repressive Legislation (NCARL)
National Lawyers Guild
Refuse & Resist!
Solidarity USA
Communities United Against Police Brutality (Minneapolis)
Greensboro Justice Fund
Elaine Cassel, Civil Liberties Watch
Stephen Rohde, Civil liberties lawyer
Website: http://www.nlg.org/eccases/
On April 20 the U.S. Supreme Court will hear oral arguments on the President'??s alleged right to create a '??law free zone'?? at the Guantanamo detention center in Cuba. And on April 28, the Court will hear oral arguments on the President'??s asserted right to designate citizens as '??enemy combatants,'?? hold them at the U.S. Navy base in Charleston, SC, and deny them the ability to challenge the lawfulness of their detention.We believe that the President cannot be allowed to create a '??legal Black Hole'?? into which people are dropped with no recourse to the courts or to international law. Among us we hold many varied views on how and why this situation has arisen and what is ultimately needed to ensure justice. But we all agree that this dangerous new presidentially-designated category of '??enemy combatants'?? who have no legal rights is unjust, illegal, and immoral, and cannot be allowed to stand.
The silence over this perilous issue must be broken, and public opposition must be manifested. Join us in front of the U.S. Supreme Court on April 20 and April 28 to declare a resounding NO! Legally permitted, non-violent demonstrations will occur on both days from 9:30 am to 12:30 pm with a program of speakers beginning at 11:am.
Our future and the future of hundreds of anonymous detainees now hang in the balance. This is a watershed event in history. What is at stake is just how much the President will be allowed to get away with. Your silence will be taken as assent.
To endorse this call, e-mail eccases@nlg.org.
Exact email that I received:
Below is a call for protest outside the US Supreme Court on the dates of hearings about the presidentially designated category of enemy combatant. As the call says: Our future and the future of hundreds of anonymous detainees now hang in the balance. This is a watershed event in history. What is at stake is just how much the President will be allowed to get away with. Your silence will be taken as assent. Please endorse this call and start mobilzing for it. Email eccases@nlg.org for more info.
Demonstrate April 20 (Tuesday) & April 28 (Wednesday)
9:30am-12:30pm In front of the US Supreme Court, Washington, DC
11am Speakers. Legally permitted rally. www.nlg.org/eccases/
Can the Rights of People Simply Disappear by Presidential Order?
What does it mean when the President of the United States can on his own designate a citizen in the U.S. as an '??enemy combatant,'?? and order the military to hold that person incommunicado, indefinitely, and without charges? The U.S. Supreme Court is now deciding whether the courts even have the right to question the President'??s action.
What does it mean when the U.S. military internationally can literally snatch people off the street, designate them as '??enemy combatants,'?? and assert that they are beyond the reach of either U.S. or international law? Many are transported to a facility under total U.S. control and funded by Congressional appropriations, where they are held incommunicado, indefinitely, without charges and some are threatened with trials before a military commission that falls short of basic standards of justice.
If the Supreme Court upholds these actions, it will condone the President'??s claim of virtually unlimited '??wartime powers'?? without a formal declaration of war by the Congress, and with no or extremely limited oversight by the courts or the Congress.
On April 20 the U.S. Supreme Court will hear oral arguments on the President'??s alleged right to create a '??law free zone'?? at the Guantanamo detention center in Cuba. And on April 28, the Court will hear oral arguments on the President'??s asserted right to designate citizens as '??enemy combatants,'?? hold them at the U.S. Navy base in Charleston, SC, and deny them the ability to challenge the lawfulness of their detention.
We believe that the President cannot be allowed to create a '??legal Black Hole'?? into which people are dropped with no recourse to the courts or to international law. Among us we hold many varied views on how and why this situation has arisen and what is ultimately needed to ensure justice. But we all agree that this dangerous new presidentially-designated category of '??enemy combatants'?? who have no legal rights is unjust, illegal, and immoral, and cannot be allowed to stand.
The silence over this perilous issue must be broken, and public opposition must be manifested. Join us in front of the U.S. Supreme Court on April 20 and April 28 to declare a resounding NO! Legally permitted, non-violent demonstrations will occur on both days from 9:30 am to 12:30 pm with a program of speakers beginning at 11:am.
Our future and the future of hundreds of anonymous detainees now hang in the balance. This is a watershed event in history. What is at stake is just how much the President will be allowed to get away with. Your silence will be taken as assent.
To endorse this call, e-mail eccases@nlg.org.
[national and international organizations]
Amnesty International USA
Bill of Rights Defense Committee
Blue Triangle Network
First Amendment Foundation
Guantanamo Human Rights Commission
National Committee Against Repressive Legislation (NCARL)
National Lawyers Guild
Refuse & Resist!
Solidarity USA
[regional and local organizations]
Communities United Against Police Brutality (Minneapolis)
Greensboro Justice Fund
[individuals]
Elaine Cassel, Civil Liberties Watch
Stephen Rohde, civil liberties lawyer
Website: http://www.nlg.org/eccases/
Secret 9/11 Case Before High Court
By Warren Richey for The Christian Science Monitor.
It's the case that doesn't exist. Even though two different federal courts have conducted hearings and issued rulings, there has been no public record of any action. No documents are available. No files. No lawyer is allowed to speak about it. Period.Yet this seemingly phantom case does exist - and is now headed to the US Supreme Court in what could produce a significant test of a question as old as the Star Chamber, abolished in 17th-century England: How far should a policy of total secrecy extend into a system of justice?
Secrecy has been a key Bush administration weapon in the war on terrorism. Attorney General John Ashcroft warns that mere tidbits of information that seem innocuous about the massive Sept. 11 investigation could help Al Qaeda carry out new attacks.
Yet this highly unusual petition to the high court arising from a Miami case brings into sharp focus the tension between America's long tradition of open courts and the need for security in times of national peril. At issue is whether certain cases may be conducted entirely behind closed doors under a secret arrangement among prosecutors, judges, and docket clerks.
While secret trial tactics have reportedly been used by federal prosecutors to shield cooperating drug dealers, it's unclear whether the high court has ever directly confronted the issue. But that may change if they take up MKB v. Warden (No. 03-6747).
This is among the first of the post-Sept. 11 terrorism cases to wend its way to the nation's highest tribunal. There was no public record of its existence, however, until the appeal was filed with the clerk of the US Supreme Court.
A federal judge and a three-judge federal appeals-court panel have conducted hearings and issued rulings. Yet lawyers and court personnel have been ordered to remain silent.
"The entire dockets for this case and appeal, every entry on them, are maintained privately, under seal, unavailable to the public," says a partially censored 27-page petition asking the high court to hear the case. "In the court of appeals, not just the filed documents and docket sheet are sealed from public view, but also hidden is the essential fact that a legal proceeding exists."...
The case is significant because it could force a close examination of secret tactics that are apparently becoming increasingly common under Attorney General Ashcroft. In September 2001, he ordered that all deportation hearings with links to the Sept. 11 investigation be conducted secretly. In addition, the Justice Department has acknowledged that at least nine criminal cases related to the Sept. 11 investigation were being cloaked in total secrecy.
MKB v. Warden is the first indication that the Justice Department is extending its total secrecy policy to proceedings in federal courts dealing with habeas corpus - that is, an individual's right to force the government to justify his or her detention.
The case offers the Supreme Court an opportunity for the first time to spell out whether such secret judicial proceedings violate constitutional protections. It may also offer the first insight into how much deference a majority of justices is willing to grant the government in areas where the war on terrorism may tread upon fundamental American freedoms...
Federal judges have the authority to order sensitive documents or even entire hearings sealed from public view when disclosure might harm national security. Such rulings are usually issued after the judge has explained the need for secrecy in a decision available to the public.
In addition, judges can order that an individual be identified in public court filings only by a pseudonym or by initials, as happened when the MKB case arrived at the US Supreme Court.
What is highly unusual in MKB v. Warden is that lower court judges ordered the entire case sealed from the start - preventing any mention of it to the public.
In her petition to the court, Miami federal public defender Kathleen Williams says the judges' actions authorizing the secrecy without any public notice, public hearings, or public findings amount to "an abuse of discretion" that requires corrective action by the justices.
"This habeas corpus case has been heard, appealed, and decided in complete secrecy," Ms. Williams says in her petition.
A government response to the petition is due Nov. 5. It will mark the first time the Justice Department has publicly acknowledged the existence of the habeas corpus action. The justices are set to consider the case during their Nov. 7 conference.
Justice Department officials have defended the blanket secrecy policy, saying that public hearings and public dockets would undermine efforts to recruit detainees as undercover operatives to infiltrate Al Qaeda cells in the US. According to press reports, similar secret trial tactics have been used by federal prosecutors to shield cooperating drug dealers from mention in public court documents that might blow their cover and end their use as operatives in ongoing undercover narcotics sting operations.
Here is the full text of the article in case the link goes bad:
http://www.csmonitor.com/2003/1030/p01s02-usju.html
Secret 9/11 Case Before High Court
By Warren Richey
The Christian Science Monitor
Thursday 30 October 2003
MIAMI - It's the case that doesn't exist. Even though two different federal courts have conducted hearings and issued rulings, there has been no public record of any action. No documents are available. No files. No lawyer is allowed to speak about it. Period.
Yet this seemingly phantom case does exist - and is now headed to the US Supreme Court in what could produce a significant test of a question as old as the Star Chamber, abolished in 17th-century England: How far should a policy of total secrecy extend into a system of justice?
Secrecy has been a key Bush administration weapon in the war on terrorism. Attorney General John Ashcroft warns that mere tidbits of information that seem innocuous about the massive Sept. 11 investigation could help Al Qaeda carry out new attacks.
Yet this highly unusual petition to the high court arising from a Miami case brings into sharp focus the tension between America's long tradition of open courts and the need for security in times of national peril. At issue is whether certain cases may be conducted entirely behind closed doors under a secret arrangement among prosecutors, judges, and docket clerks.
While secret trial tactics have reportedly been used by federal prosecutors to shield cooperating drug dealers, it's unclear whether the high court has ever directly confronted the issue. But that may change if they take up MKB v. Warden (No. 03-6747).
What's known about the case
This is among the first of the post-Sept. 11 terrorism cases to wend its way to the nation's highest tribunal. There was no public record of its existence, however, until the appeal was filed with the clerk of the US Supreme Court.
A federal judge and a three-judge federal appeals-court panel have conducted hearings and issued rulings. Yet lawyers and court personnel have been ordered to remain silent.
"The entire dockets for this case and appeal, every entry on them, are maintained privately, under seal, unavailable to the public," says a partially censored 27-page petition asking the high court to hear the case. "In the court of appeals, not just the filed documents and docket sheet are sealed from public view, but also hidden is the essential fact that a legal proceeding exists."
Despite the heavy secrecy, a brief docketing error led to a newspaper report identifying MKB by name in March. The report said MKB is an Algerian waiter in south Florida who was detained by immigration authorities and questioned by the FBI.
MKB's legal status remains unclear, but it appears unlikely from court documents that he is connected in any way to terrorism. He has been free since March 2002 on a $10,000 bond.
The case is significant because it could force a close examination of secret tactics that are apparently becoming increasingly common under Attorney General Ashcroft. In September 2001, he ordered that all deportation hearings with links to the Sept. 11 investigation be conducted secretly. In addition, the Justice Department has acknowledged that at least nine criminal cases related to the Sept. 11 investigation were being cloaked in total secrecy.
MKB v. Warden is the first indication that the Justice Department is extending its total secrecy policy to proceedings in federal courts dealing with habeas corpus - that is, an individual's right to force the government to justify his or her detention.
The case offers the Supreme Court an opportunity for the first time to spell out whether such secret judicial proceedings violate constitutional protections. It may also offer the first insight into how much deference a majority of justices is willing to grant the government in areas where the war on terrorism may tread upon fundamental American freedoms.
From the perspective of news reporters and government watchdogs, the case marks a potential turning point away from a long-held presumption that judicial proceedings in the US are open to public scrutiny.
The case is one of several currently on petition to the high court dealing with some aspect of the war on terror. Two cases relate to detainees at Guantánamo Bay, Cuba, and one challenges Yasser Hamdi's open-ended detention as an enemy combatant. A fourth case seeks to force the Justice Department to disclose the names of detainees caught up in antiterror investigations - an issue closely related to the Miami habeas case.
Federal judges have the authority to order sensitive documents or even entire hearings sealed from public view when disclosure might harm national security. Such rulings are usually issued after the judge has explained the need for secrecy in a decision available to the public.
In addition, judges can order that an individual be identified in public court filings only by a pseudonym or by initials, as happened when the MKB case arrived at the US Supreme Court.
What is highly unusual in MKB v. Warden is that lower court judges ordered the entire case sealed from the start - preventing any mention of it to the public.
'Abuse of discretion'?
In her petition to the court, Miami federal public defender Kathleen Williams says the judges' actions authorizing the secrecy without any public notice, public hearings, or public findings amount to "an abuse of discretion" that requires corrective action by the justices.
"This habeas corpus case has been heard, appealed, and decided in complete secrecy," Ms. Williams says in her petition.
A government response to the petition is due Nov. 5. It will mark the first time the Justice Department has publicly acknowledged the existence of the habeas corpus action. The justices are set to consider the case during their Nov. 7 conference.
Justice Department officials have defended the blanket secrecy policy, saying that public hearings and public dockets would undermine efforts to recruit detainees as undercover operatives to infiltrate Al Qaeda cells in the US. According to press reports, similar secret trial tactics have been used by federal prosecutors to shield cooperating drug dealers from mention in public court documents that might blow their cover and end their use as operatives in ongoing undercover narcotics sting operations.
Things are finally heating up around the Guantanamo Bay Prison/Death Camp Situation and the lack of Due Process for its terrorist suspects. This article is the first of several I'll be putting up today.
'Justice denied' at Guantanamo
By Rachel Clarke for BBC News.
A diverse group of ex-judges, diplomats and former military lawyers is urging the US Supreme Court to intervene on behalf of hundreds of men being held without trial by the government...They hope the top court will agree to review the detention of suspected al-Qaeda and Taleban members in the US military camp at Guantanamo Bay in Cuba.
US officials insist there are reasons for holding the alleged fighters and say they will get a fair legal hearing in due course.
But opponents say it is already nearly two years since most of the detainees were captured and they should be afforded more rights now.
John Gibbons, a former appeals court judge, said justice was being "totally denied" to the detainees in Guantanamo.
"They don't have access to lawyers; they have had no hearings; they are just in limbo. That's as clear an example of justice denied as you can find," he said.
A key issue is that the detainees are foreign citizens being held on foreign soil and as such may not come under the jurisdiction of the civil courts.
Mr Gibbons said he found it "repugnant" that the administration could order the imprisonment of people possibly beyond the reach of law, especially as he said the US clearly ruled over Guantanamo Bay, even if it was technically part of Cuba.
Here is the full text of the article in case the link goes bad:
http://news.bbc.co.uk/2/hi/americas/3179014.stm
'Justice denied' at Guantanamo
By Rachel Clarke
BBC News Online in Washington
A diverse group of ex-judges, diplomats and former military lawyers is urging the US Supreme Court to intervene on behalf of hundreds of men being held without trial by the government.
Detainees have been given no access to lawyers
They hope the top court will agree to review the detention of suspected al-Qaeda and Taleban members in the US military camp at Guantanamo Bay in Cuba.
US officials insist there are reasons for holding the alleged fighters and say they will get a fair legal hearing in due course.
But opponents say it is already nearly two years since most of the detainees were captured and they should be afforded more rights now.
John Gibbons, a former appeals court judge, said justice was being "totally denied" to the detainees in Guantanamo.
"They don't have access to lawyers; they have had no hearings; they are just in limbo. That's as clear an example of justice denied as you can find," he said.
A key issue is that the detainees are foreign citizens being held on foreign soil and as such may not come under the jurisdiction of the civil courts.
Mr Gibbons said he found it "repugnant" that the administration could order the imprisonment of people possibly beyond the reach of law, especially as he said the US clearly ruled over Guantanamo Bay, even if it was technically part of Cuba.
Shafiq Rasul is among the Britons held at the military camp
He said he hoped the Supreme Court would be persuaded to "restore the rule of law" with the filing of the legal papers by the seven groups supporting two cases brought concerning 16 detainees, including two Britons - Shafiq Rasul and Asif Iqbal.
There is no compulsion for the US Supreme Court to review the cases, but Mr Gibbons said he was optimistic that the support needed from four of the nine justices would be forthcoming.
Retribution feared
Don Guter, the US navy's judge advocate general until last year, said extreme measures were necessary after the 11 September 2001 attacks on the United States.
But Mr Guter, who was inside the Pentagon when it was deliberately hit by a hijacked plane that day, said it was not acceptable simply to hold suspected al-Qaeda or Taleban members until the US' war on terror was over.
Such a victory might never come he said, and even if there was no public outcry about the treatment of Guantanamo detainees the US should permit them various rights, not least to stop possible retributions.
The US has the might, but not the right, the advocates say
The argument filed to the Supreme Court by Mr Guter and other former military lawyers said: "The lives of American military forces may well be endangered by the United States' failure to grant foreign prisoners in its custody the same rights that the United States insists be accorded to American prisoners held by foreigners."
That view was backed by ex-prisoners-of-war, some of whom told the Supreme Court they believed they owed their lives to the fact that their captors abided by the Geneva Conventions designed to protect captured soldiers.
William Rogers, a former undersecretary of state, said there was concern that the situation in Guantanamo would take the US from the moral high ground where it could be a role model to other nations to a much lower position.
He and 18 former US diplomats, including 11 ambassadors, filed their own papers which said: "The perception of this case abroad - that the power of the United States can be exercised outside the law and even, it is presumed , in conflict with the law - will diminish our stature in the wider world."
Supreme Court Strikes Down Texas Law Banning Sodomy
By The Associated Press for the NY Times.
The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex.Laws forbidding homosexual sex, once universal, now are rare. Those on the books are rarely enforced but underpin other kinds of discrimination, lawyers for two Texas men had argued to the court.
AdvertisementThe men ``are entitled to respect for their private lives,'' Justice Anthony M. Kennedy wrote.
``The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,'' he said.
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O'Connor agreed with the outcome of the case but not all of Kennedy's rationale.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.
Here is the full text of the article in case the link goes bad:
http://www.nytimes.com/aponline/politics/AP-Scotus-Sodomy.html
Supreme Court Strikes Down Texas Law Banning Sodomy
By THE ASSOCIATED PRESS
Filed at 4:05 p.m. ET
WASHINGTON (AP) -- The Supreme Court struck down a ban on gay sex Thursday, ruling that the law was an unconstitutional violation of privacy.
The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex.
Laws forbidding homosexual sex, once universal, now are rare. Those on the books are rarely enforced but underpin other kinds of discrimination, lawyers for two Texas men had argued to the court.
Advertisement
The men ``are entitled to respect for their private lives,'' Justice Anthony M. Kennedy wrote.
``The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,'' he said.
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O'Connor agreed with the outcome of the case but not all of Kennedy's rationale.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.
The court ``has largely signed on to the so-called homosexual agenda,'' Scalia wrote for the three. He took the unusual step of reading his dissent from the bench.
``The court has taken sides in the culture war,'' Scalia said, adding that he has ``nothing against homosexuals.''
Although the majority opinion said the case did not ``involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter,'' Scalia said the ruling invites laws allowing gay marriage.
``This reasoning leaves on shaky, pretty shaky grounds, state laws limiting marriage to opposite-sex couples,'' Scalia wrote.
Thomas wrote separately to say that while he considers the Texas law at issue ``uncommonly silly,'' he cannot agree to strike it down because he finds no general right to privacy in the Constitution.
Thomas calls himself a strict adherent to the actual words of the Constitution as opposed to modern-day interpretations. If he were a Texas legislator and not a judge, Thomas said, he would vote to repeal the law.
``Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources,'' Thomas wrote.
The two men at the heart of the case, John Geddes Lawrence and Tyron Garner were each fined $200 and spent a night in jail for the misdemeanor sex charge in 1998.
The case began when a neighbor with a grudge faked a distress call to police, telling them that a man was ``going crazy'' in Lawrence's apartment. Police went to the apartment, pushed open the door and found the two men having anal sex.
``This ruling lets us get on with our lives and it opens the door for gay people all over the country,'' Lawrence said Thursday.
Ruth Harlow, one of Lawrence's lawyers, called the ruling historic.
``The court had the courage to reverse one of its gravest mistakes and to replace that with a resounding statement,'' of gay civil rights, Harlow said.
``This is a giant leap forward to a day where we are no longer branded as criminals.''
As recently as 1960, every state had an anti-sodomy law. In 37 states, the statutes have been repealed by lawmakers or blocked by state courts.
Of the 13 states with sodomy laws, four -- Texas, Kansas, Oklahoma and Missouri -- prohibit oral and anal sex between same-sex couples. The other nine ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.
Thursday's ruling apparently invalidates those laws as well.
The Supreme Court was widely criticized 17 years ago when it upheld an antisodomy law similar to Texas'. The ruling became a rallying point for gay activists.
Of the nine justices who ruled on the 1986 case, only three remain on the court. Rehnquist was in the majority in that case -- Bowers v. Hardwick -- as was O'Connor. Stevens dissented.
``Bowers was not correct when it was decided, and it is not correct today,'' Kennedy wrote for the majority Thursday.
Kennedy noted that the current case does not involve minors or anyone who might be unable or reluctant to refuse a homosexual advance.
``The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under (the Constitution) gives them the full right to engage in their conduct without intervention of the government.''
A long list of legal and medical groups joined gay rights and human rights supporters in backing the Texas men. Many friend-of-the-court briefs argued that times have changed since 1986, and that the court should catch up.
At the time of the court's earlier ruling, 24 states criminalized such behavior. States that have since repealed the laws include Georgia, where the 1986 case arose.
Texas defended its sodomy law as in keeping with the state's interest in protecting marriage and child-rearing. Homosexual sodomy, the state argued in legal papers, ``has nothing to do with marriage or conception or parenthood and it is not on a par with these sacred choices.''
The state had urged the court to draw a constitutional line ``at the threshold of the marital bedroom.''
Although Texas itself did not make the argument, some of the state's supporters told the justices in friend-of-the-court filings that invalidating sodomy laws could take the court down the path of allowing same-sex marriage.
The case is Lawrence v. Texas, 02-102.
Yippie Kai-yay! Consenting adults are allowed to have sex however they want in the privacy of their own homes!
It almost seems like we're living in a democracy in the 21st Century!
And Howard Dean steps up to the plate to make a statement on the subject:
Statement on Supreme Court's Decision on Lawrence vs. Texas
WASHINGTON, DC – “I applaud the Supreme Court ruling in the case of Lawrence v. Texas overturning the Texas anti-sodomy law. This decision marks a significant advance toward achieving equal rights for all Americans. For too long, laws like this have divided us by race, by gender and by sexual orientation. As a Governor who worked hard to protect the rights of gay and lesbian couples, I am extremely pleased with the Supreme Court's ruling."Every American, regardless of sexual orientation, should be afforded the right to privacy. The Texas anti-sodomy law was nothing less than government-sanctioned intolerance and discrimination. The fact that President Bush defended the law while he was Governor shows that he is not the uniter he claims to be.”
Note: this case has been decided since this oral argument was heard.
Oyez Project Releases Affirmative Action Arguments in MP3 Format
It's being released under a Creative Commons license.
There's also a great interview with Jerry Goldman, Professor of Political Science at Northwestern on the Creative Commons site.
Supreme Court Splits on Diversity Efforts at University of Michigan
By David Stout for the NY Times.
The law school's policy was affirmed in a 5-to-4 ruling, written by Justice Sandra Day O'Connor, that rejected Bush administration arguments that the policy should be voided. She declared that the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.""Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized," Justice O'Connor wrote.
She was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Dissenting were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.
Here is the full text of the article in case the link goes bad:
http://www.nytimes.com/2003/06/23/politics/23WIRE-COURT.html
Supreme Court Splits on Diversity Efforts at University of Michigan
By DAVID STOUT
WASHINGTON, June 23 — In its most important statements on affirmative action in a quarter-century, the Supreme Court narrowly upheld the admissions policy of the University of Michigan law school today, finding that minority applicants may be given an edge, but struck down the part of the university's undergraduate-admissions system that relies on a point system.
The pair of rulings did not go as far as opponents of affirmative action would have liked, nor perhaps as far as people committed to affirmative action would have wished. But taken together, the twin decisions were the most important rulings on the subject since the landmark Bakke decision of 1978, which rejected rigid quotas but recognized race as a "factor" in admissions and hiring decisions.
The rulings are expected to have wide impact through private college and universities, businesses and other areas of everyday life even though, technically, they address only admissions at public institutions.
The law school's policy was affirmed in a 5-to-4 ruling, written by Justice Sandra Day O'Connor, that rejected Bush administration arguments that the policy should be voided. She declared that the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
"Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized," Justice O'Connor wrote.
She was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Dissenting were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Chief Justice Rehnquist called the law school program "a naked effort to achieve racial balancing" in accordance with statistics.
"This is precisely the type of racial balancing that the court itself calls `patently unconstitutional,' " he wrote.
In its 6-to-3 ruling on undergraduate admissions, the justices struck down a point system under which applicants were rated on various factors, including race. In so ruling, the court showed the wariness with which it has regarded the general concept of "quotas" in recent years.
Chief Justice Rehnquist, writing for the majority, found that in considering undergraduate applicants, the university had violated the Equal Protection Clause of the Constitution.
The University of Michigan decisions were handed down as the court set to conclude its 2002 term. The justices also upheld the use of filters to screen out Internet smut in public libraries and struck down a California law requiring insurance companies that do business in the state to disclose information about their Holocaust-era policies.
Still to be decided is a death-penalty case from Maryland, involving the extent of a defense lawyer's duty to search out background information that might persuade a court to spare a defendant.
In the undergraduate case, Justices O'Connor, Scalia, Kennedy and Thomas sided with the chief justice, as did Justice Breyer, in part.
Justices Stevens, Souter and Ginsburg dissented, as did Justice Breyer, in part.
The law school case is Grutter v. Bollinger, No. 02-241; the undergraduate case is Gratz v. Bollinger, No. 02-516. Both can be read on the Supreme Court Web site: www.supremecourtus.gov.
The University of Michigan's leadership was elated at the outcome. "A majority of the court has firmly endorsed the principle of diversity," the university's president, Mary Sue Coleman, told The Associated Press. "This is a resounding affirmation that will be heard across the land from our college classrooms to our corporate boardrooms."
Together, the decisions and dissents run to some 150 pages, which are certain to be pored over by lawyers, educators and policymakers for some time.
It was no surprise that today's decisions were not entirely clear-cut, given the tone of the arguments before the tribunal on April 1.
The yearning for nuance became especially obvious when Kirk O. Kolbo, a lawyer from Minneapolis, had a sharp exchange with Justice O'Connor.
"The Constitution protects the rights of individuals, not racial groups," Mr. Kolbo said. He described his clients — Barbara Grutter, who was turned down by the law school when she applied at the age of 43, and Jennifer Gratz and Patrick Hamacher, who failed to win admission as undergraduates — as the victims of discrimination.
Justice O'Connor, whose position at the center of the court on this issue made her the object of particular attention, challenged Mr. Kolbo. Was he saying that race "can't be a factor at all," she wanted to know.
"Race itself should not be a factor among others in choosing students, because of the Constitution," Mr. Kolbo replied.
Justice O'Connor objected that the court's precedents held otherwise. "You are speaking in absolutes, and it isn't quite that," she said.
Justice Thomas explained his dissent in part by quoting Frederick Douglass: "What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice."
The justice went on, "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators." The United States Court of Appeals for the Sixth Circuit, in Cincinnati, had upheld the law school plan. It had not yet ruled on the undergraduate plan when the Supreme Court decided to hear both cases.
Justice Takes a Beating
In The Los Angeles Times.
This is the full text of the article. It's all too important to leave any out.
While Supreme Court Justice Clarence Thomas labored to justify the bullying interrogation of a farm worker whom an Oxnard police officer had just gravely wounded, Justice John Paul Stevens, dissenting, called the inquisition what it was: "the functional equivalent" of torture. Thomas' 6-3 majority opinion Tuesday rolls back decades of constitutional protections against self-incrimination and all but invites the backroom rough-'em-up police tactics of old.The farm worker, Oliverio Martinez, is blind and partly paralyzed from the five bullets that police pumped into his body after they stopped him in connection with an investigation of possible drug sales in his Oxnard neighborhood. Although Martinez initially complied with orders to dismount from his bicycle, a scuffle resulted when the officers discovered he was carrying a knife and Martinez was shot.
Paramedics arrived and carted away Martinez, bleeding and screaming, to a hospital. For nearly an hour, as Martinez waited for medical treatment and then as doctors tended him, the officers pressured him to confess to starting the fight.
"I am dying!" Martinez cried.
"OK, yes, you are dying," the officer said. "But tell me why you are fighting with the police."
Not once did the police officers inform Martinez of his right to remain silent and to have a lawyer present. Instead, to try to badger him into a confession, they took advantage of his physical agony and mental anguish and the fact that he couldn't move from the hospital bed.
In the end, the officers got nothing useful from Martinez and never charged him with a crime. Martinez sued, both for the shooting and for civil damages on the ground that police violated his 5th Amendment right against self-incrimination and his due process rights against egregious police conduct. The shooting lawsuit still stands.
Writing for a splintered majority, Thomas insisted that where there was no harm of any legal consequence, there was no foul. "Martinez was never made to be a 'witness' against himself in violation of the 5th Amendment's self-incrimination clause because his statements were never admitted as testimony against him in a criminal case [T]he mere use of compulsive questioning, without more, [does not] violate the Constitution." Such a narrow thread of reasoning cuts a wide path to cruelty.
Because Martinez had not been advised of his rights, the court said, had police charged him based on his nearly incoherent statements, his disclosures would not have been admissible as evidence anyway.
Three cases before the court next term could push at the boundaries of permissible evidence in criminal cases. The Martinez case turns back the clock, and the coming cases could multiply the harm to a civilized justice system.
The Supreme Court has ruled that it's okay to beat up suspects without reading them their miranda rights in order to get statements out of them, even if those statements will most likely be thrown out later in a court of law. (Or not get thrown out, of course, considering that such decisions will be made later by individual judges on a case by case basis.)
Clarence Thomas, who wrote the opinion, said that this is true even in the extreme case of Oliverio Martinez, who was in a hospital, bleeding to death from police-inflicted bullet wounds during the interrogation in question.
Here's a link to the opinion and concurring and dissenting opinions: CHAVEZ V. MARTINEZ.
Court Finds Coercive Questioning OK
Justices say defendants or suspects can be compelled to respond to police questioning, even though the statements may not be used against them in court
By James Gerstenzang for The Los Angeles
The Supreme Court ruled today that coercive questioning of a suspect by police officers -- even a gravely wounded man who has not been offered his Miranda rights -- does not violate a person's Constitutional rights, as long as the questioning stops short of torture.The court said defendants have the right not to have statements they make to police used in court against them during trial. But defendants or suspects can still be compelled to respond to police questioning.
The 6-to-3 decision is likely to have wide ramifications because it could open the door to increased pressure by police officers interrogating potential defendants...
Writing for the majority, Justice Clarence Thomas said that while a person under police questioning has the right not to answer questions where the answer might be self-incriminating in future criminal proceedings, "that does not alter our conclusion that a violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminal case."
Thomas wrote: "Mere coercion does not violate the text of the self-incrimination clause absent use of the compelled statements in a criminal case against the witness."
The farm worker, Oliverio Martinez, was questioned in a hospital emergency room after he had been shot five times by police. He had not been told of his rights to remain silent, or to have a lawyer's assistance, and he has maintained that a police sergeant questioned him after he said he did not want the questioning to continue.
Here is the full text of the article in case the link goes bad:
http://www.latimes.com/news/nationworld/nation/la-052703scotus_lat,1,4093479.story?coll=la%2Dhome%2Dheadlines
Court Finds Coercive Questioning OK
By James Gerstenzang
The Los Angeles
Tuesday 27 May 2003
Justices say defendants or suspects can be compelled to respond to police questioning, even though the statements may not be used against them in court
WASHINGTON -- The Supreme Court ruled today that coercive questioning of a suspect by police officers -- even a gravely wounded man who has not been offered his Miranda rights -- does not violate a person's Constitutional rights, as long as the questioning stops short of torture.
The court said defendants have the right not to have statements they make to police used in court against them during trial. But defendants or suspects can still be compelled to respond to police questioning.
The 6-to-3 decision is likely to have wide ramifications because it could open the door to increased pressure by police officers interrogating potential defendants.
At issue is the extent of the protections provided by the Fifth Amendment against self-incrimination, the 1966 Miranda decision guaranteeing a person's right to remain silent in the face of police questioning and the right to obtain a lawyer before being interrogated.
In the decision, however, the high court ruled that suspects have a right to sue if they are tortured during police questioning.
In another Supreme Court case today, the court upheld the rights of state workers under a federal law guaranteeing time off to care for children or ailing relatives, departing from the court's line of cases that expand state rights at the expense of federal power or laws passed by Congress.
The court, in the decision written by Chief Justice William H. Rehnquist, held that state employees can sue in federal court to enforce their rights under the Family and Medical Leave Act.
The Mirada ruling decision occurred in the 1997 case of an Oxnard, Calif., farm worker who was arrested and shot multiple times by police who then questioned him -- despite his protestations -- as he lay gravely wounded.
Writing for the majority, Justice Clarence Thomas said that while a person under police questioning has the right not to answer questions where the answer might be self-incriminating in future criminal proceedings, "that does not alter our conclusion that a violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminal case."
Thomas wrote: "Mere coercion does not violate the text of the self-incrimination clause absent use of the compelled statements in a criminal case against the witness."
The farm worker, Oliverio Martinez, was questioned in a hospital emergency room after he had been shot five times by police. He had not been told of his rights to remain silent, or to have a lawyer's assistance, and he has maintained that a police sergeant questioned him after he said he did not want the questioning to continue.
The police supervisor pressed him to explain his version of the events leading to the shooting.
In a transcript of the interview, Martinez is said to have responded: "I am choking. I am dying, please."
The officer said: "If you are going to die, tell me what happened."
Martinez was not charged with a crime; the violence left him blind and paralyzed and he sued the police sergeant and the City of Oxnard for, among other things, coercive questioning.
In its defense, the Oxnard police department asserted that the Miranda ruling does not include a "constitutional right to be free of coercive interrogation," but only a right not to have forced confessions used at trial. The Bush administration sided with the police in the case.
Writing for the minority, Justice John Paul Stevens said the interrogation was akin to "an attempt to obtain an involuntary confession from a prisoner by torturous methods."
Update June 23, 2003, the Supreme Court has handed down it's decision on this case upholding Affirmative Action.
Here's a clip from an NBC Nightly News with Tom Brokaw on April 1, 2003.
I've also collected together a bunch of links on that go with these clips here.
NBC News On Supreme Court Affirmative Action Case (Small - 6 MB)
NBC News On Supreme Court Affirmative Action Case (Hi-res 79 MB)
"At the U.S. Supreme court today, one of the most important civil rights cases in a generation..." -- Tom Brokaw.
Update June 23, 2003, the Supreme Court has handed down it's decision on this case upholding Affirmative Action.
The cases heard by the Supreme Court on April 1 were Gratz v. Bollinger and
Grutter v. Bollinger (it's two back to back cases).
Audio of the arguments (from CNN):
http://www.cnn.com/LAW/scotus/gratz.bollinger/argument.smil
http://www.cnn.com/LAW/scotus/gratz.bollinger/argument2.smil
Briefs (from FindLaw):
Brief for the United States, Gratz v. Bollinger [Jennifer Gratz (U. Michigan
admissions]:
http://news.findlaw.com/cnn/docs/gratz/gratzum11603brf.pdf
Brief for the United States, Grutter v. Bollinger [(Barbara Grutter (U.
Michigan School of Law admissions)]:
http://news.findlaw.com/cnn/docs/grutter/grutterum11603brf.pdf
Opinions of the lower courts (from FindLaw):
U.S. District Court Opinion:
http://news.findlaw.com/cnn/docs/grutter/grttrbllngr32701ff.pdf
6th Circuit Opinion:
http://laws.lp.findlaw.com/6th/02a0170p.html
The case that started it all, Bakke (from FindLaw)
University of California Regents v. Bakke:
http://laws.findlaw.com/us/438/265.html
NPR says:
"what many observers consider to be the most important civil rights issue to
come before the high court in a generation ... The cases before the
nine-judge panel were compelling enough that the court took a rare step by
allowing news organizations to record oral arguments streamed live from the
bench ... The main case involves the university's law school. Barbara
Grutter, who is white, applied for admission there in 1996. She was
rejected. She investigated and found out that African Americans and ethnic
minorities who had lower overall admissions scores were admitted. Grutter
sued, saying she was a victim of illegal discrimination. ... Grutter and her
supporters won the first round in U.S. District Court, but lost in a close
decision in the Sixth Circuit Court of Appeals ... On Tuesday," [That was
April 1] "the high court will hear oral arguments on Grutter v. Bollinger
and the related lawsuit, Gratz v. Bollinger, that tests the university's
undergraduate affirmative action program ":
http://www.npr.org/news/specials/michigan/
