In America, The Law Is King

Dzhokhar “Shitstain” Tsarnaev

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Breitbart:

Report: Federal Judge Overruled Investigators to Mirandize Boston Bomber

Reports indicate Dzhokhar Tsarnaev was mirandized by Federal Judge Marianne Bowler against the wishes of investigators who wanted to continue questioning the suspect.

As news has come out of Bowler’s actions on April 22, Republican lawmakers have pressed the DOJ to explain “why it didn’t make a stronger bid to resist the judge’s plans.”

These lawmakers include House Intelligence Committee Chairman Mike Rogers (R-MI), who said, “We have a longstanding tradition that the judiciary does not interfere with investigations. This sets a very dangerous precedent.”

DOJ spokesman Dean Boyd said that after the first “sealed charges” against Tsarnaev were filed with Judge Bowler on Sunday, April 21, it was clear “the hearing would be on Monday.” At that point, Boyd says, “The rules of criminal procedure require the court to inform the defendant of his right to silence.”

On Monday, April 22, Judge Bowler mirandized Tsarnaev in his hospital room. Officials say the bombing suspect stopped talking to investigators once he was read his Miranda rights.

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Judge Marianne Bowler is my new shero. Appointed to the federal bench by GHW Bush, she is a walking, talking example of why judges need life tenure. She had to know her actions were gonna cause a shitstorm but she did it anyway.

Thomas Paine said “In America, the law is king”. That is something I agree with wholeheartedly. Civil rights are meaningless if they can be taken away whenever the government feels like it. Having a Bill of Rights means we have to tolerate big-mouthed jerks, occasional shootings, and criminals escaping justice due to legal technicalities. (Another term for “legal technicality” is “civil right”.)

What irks me the most is this whole kerfluffle was caused by the government seeking to evade the law as set forth in Miranda and its progeny. This was no “good faith” exception, it was a deliberate action taken in bad faith.

I want to see Dzhokhar Tsarnaev face justice. I hope he gets the death penalty. But I want everything done in full accordance with the law. If the Constitution will protect the rights of a little shitstain like Jahar, it will also protect the rights of all of us.

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“No person . . . shall be compelled . . . to be a witness against himself”

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WTF?

The surviving suspect in the Boston Marathon bombings acknowledged to the FBI his role in the attacks but did so before he was advised of his constitutional right to keep quiet and seek a lawyer, U.S. officials said Wednesday.

Once Dzhokhar Tsarnaev was read his rights on Monday, he immediately stopped talking, according to four officials of both political parties who were briefed on the interrogation but insisted on anonymity because the briefing was private.

After roughly 16 hours of questioning, investigators were surprised when a magistrate judge and a representative from the U.S. Attorney’s office entered the hospital room and read Tsarnaev his rights, the four officials and one law enforcement official said. Investigators had planned to keep questioning him.

16 hours?

This leaky shitbag was brought into the hospital in critical condition Friday night, dripping blood from various new holes in his anatomy. He was intubated and could not speak. SO THEY INTERROGATED HIM FOR 16 HOURS?

What part of the right against self-incrimination do they not understand?

I could really give a fuck about Speedbump’s little brother. But I care about the rule of law and this shit is so stupid. We beat Nazi Germany, Imperial Japan and Fascist Italy simultaneously, and we did it without having to torture anyone.

I still remember when the Vile Progs claimed to care about this stuff.

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“Those who would give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

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Politicker:

Bloomberg Says Interpretation of Constitution Will ‘Have to Change’ After Boston Bombing

In the wake of the Boston Marathon bombings, Mayor Michael Bloomberg said Monday the country’s interpretation of the Constitution will “have to change” to allow for greater security to stave off future attacks.

“The people who are worried about privacy have a legitimate worry,” Mr. Bloomberg said during a press conference in Midtown. “But we live in a complex word where you’re going to have to have a level of security greater than you did back in the olden days, if you will. And our laws and our interpretation of the Constitution, I think, have to change.”

Mr. Bloomberg, who has come under fire for the N.Y.P.D.’s monitoring of Muslim communities and other aggressive tactics, said the rest of the country needs to learn from the attacks.

“Look, we live in a very dangerous world. We know there are people who want to take away our freedoms. New Yorkers probably know that as much if not more than anybody else after the terrible tragedy of 9/11,” he said.

“We have to understand that in the world going forward, we’re going to have more cameras and that kind of stuff. That’s good in some sense, but it’s different from what we are used to,” he said.

The mayor pointed to the gun debate and noted the courts have allowed for increasingly stringent regulations in response to ever-more powerful weapons.

“Clearly the Supreme Court has recognized that you have to have different interpretations of the Second Amendment and what it applies to and reasonable gun laws … Here we’re going to to have to live with reasonable levels of security,” he said, pointing to the use of magnetometers to catch weapons in city schools.

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What is it about these NYC mayors? Nanny Bloomberg sounds like he was channeling Rudy Ghouliani. Someone should remind him of the immortal words of Benjamin Franklin:

Those who would give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

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History shows that when you trade freedom for security you end up with neither one. Freedom isn’t free.

If the preliminary (media) reports are true, once again our government ignored flashing red lights, this time regarding Tamerlan “Speedbump” Tsarnaev. So would good would giving them more power do anyway? Do you really think making air passengers remove their shoes before getting groped and X-rayed by TSA agents has made flying any safer?

Surrendering our freedom because of this terrorist bombing makes as much sense as banning pressure cookers. Neither one will keep us safe.

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This is why Dzhokar Tsarnaev needs a fair trial with due process of law

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Spencer Ackerman:

#Freejahar Hashtag Rallies Emerging Cult of Boston Bomb Suspect

Barely two days after cops apprehended Suspect #2 in the Boston Marathon bombings, supporters of Dzhokhar Tsarnaev are rallying online. A flood of Twitter, Instagram and web postings are mirroring the crowdsourced effort to find the bomb culprit, except this time they’re out to exonerate him. Analysts of online extremism are watching closely to see if Tsarnaev becomes a cult figure.

The #freejahar hashtag on Twitter is about what you’d expect after the most highly publicized manhunt in the country. It’s a mix of conspiracy theories, sympathy for Tsarnaev and skepticism of the official narrative surrounding the 19-year-old’s arrest. Much of it is consumed with an effort to crowdsource Tsarnaev’s exoneration, pointing to photos from the scene and speculating about them — similar to what took place on 4chan and Reddit to hunt the bombing perpetrators.

“He’s fucking innocent. If he were ‘guilty’, it wouldn’t take this long to fucking prove it, and there would actually be evidence,” says one supporter, although the government has yet to charge the incapacitated, hospitalized Tsarnaev with a crime.

@J_Tsarsupport posted a photo (warning: graphic) claiming “proof that half the ‘victims’ are fake” based on a suspicion that there ought to be more blood. Links to conspiracy accusations on Infowars — which disrupted an FBI press conference on Thursday — proliferate. Photos circulate purporting to show, as with this one, that the backpack containing the bomb matches one carried by a different individual. “We The Private Eye have Proven Jhar innocent an soon he will publicly be innocent ..Keep up the great job campaigners,” tweeted another advocate using the hashtag #TroyCrossleyTruth. Compressing the cycle of accusation and refutation online, the hashtag is already getting trolled.

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Not surprisingly, leading this TFH/truther crowd is perennial paranoid nut-job Alex Jones. (Anything emerging from the mouth or website of Alex Jones should be assumed to be false until proven otherwise.)

Everything I know about the case against Dzhokhar Tsarnaev I learned online or on television. This means that everything I “know” about the case is inherently unreliable and suspect. Nonetheless I feel very confident that whoever prosecutes Tsarnaev will prove his guilt beyond a reasonable doubt.

Secrecy is the fertile soil in which conspiracy theories grow. The prosecution does not need to prove why the Tsarnaev brothers chose to kill innocent people, the prosecutor needs only to prove that they did it. They also don’t need to prove where the homicidal brothers learned the craft of bombmaking nor who else may have been involved.

We need to give Dzhokhar Tsarnaev justice. That includes respecting his constitutional rights as well as giving him due process of law and a fair trial. The trial should be televised too. Let there be no doubt about his guilt or the strength of the evidence against him.

One of the reasons we need to do that is so no one can turn him into a martyr or a figure of sympathy. Nobody who’s not batshit crazy, anyway.

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Dzhokar Tsarnaev Charged

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Allahpundit:

Via the Examiner, they’ve hit him with just two counts thus far, one of which is conspiracy to use a weapon of mass destruction (i.e. an IED) against persons or property in the U.S., but that’s enough for a death sentence if the DOJ chooses to seek it. I sense some anger on the right that the feds aren’t treating him as an “enemy combatant,” but I think that has more to do with the condemnatory power of that term than the legal consequences flowing from it. Terrorism is qualitatively different from common crime in its political motivation and so people want Tsarnaev to be treated qualitatively differently by the justice system. That’s also what drives much of the objections to Mirandizing terrorists, I think: It’s not that Miranda will matter hugely in determining whether he talks, it’s that by Mirandizing him you’re treating him like a common criminal rather than a man who’s declared war on the United States.

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What about the presumption of innocence? Tsarnaev isn’t considered guilty of terrorism until he’s been tried and convicted – in a court, with full due process.

My concern is not for Tsarnaev, it is for the Constitution and the rule of law. Give him his rights, dot all the i’s and cross all the t’s. Give him a fair trial before a jury of his peers. Let them find him guilty beyond a reasonable doubt, then allow him to make whatever legal appeals he can.

Then strap him down, shove a big needle in his arm and pump his ass full of bye-bye juice.

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The 4th, 5th and 6th Amendments are just as important as the 1st and 2nd

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Some Tweets:

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I'm glad one of the Islamic terrorists who indiscriminately killed people, including a little child, is dead. I hope his brother suffers.—
Jim Treacher (@jtLOL) April 20, 2013

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I once more quote eminent law enforcement authority, Inspector Harry Callahan, SFPD: "Well, I'm all broken up over that man's rights."—
Robert Stacy McCain (@rsmccain) April 20, 2013

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During the past few years we have seen several mass murders involving guns. Some people, including our current president, have used these horrific incidents to try to curtail our Second Amendment rights. In each case I have strongly supported our right to keep and bear arms.

This is not because I did not care about the innocent lives that were lost. It was because I believe our freedom is worth the cost. Freedom isn’t free.

But our Fourth, Fifth and Sixth Amendment rights are just as important as the First and Second. We have to tolerate scumbags like Larry Flynt and protesters burning the American flag. That’s because freedom of speech is nearly sacred. As it should be.

Putting up with speech we find abhorrent is the price we pay for our own freedom of speech. Putting up with the death of innocents is the price we pay for the right to enforce and defend our freedoms.

The Fourth Amendment has to do with our right to privacy and the freedom from unreasonable searches. The Fifth Amendment concerns due process and the right against self-incrimination. The Sixth Amendment protects our right to legal counsel.

Those rights would be meaningless if they could be violated with impunity. After years of looking the other way the Supreme Court ruled that the only practical way to enforce those rights was to exclude evidence obtained in violation thereof.

That means that the price of our freedom includes letting some bad guys escape justice. But we don’t do that because we feel sorry for the bad guys. We sometimes have to let criminals go free to protect our own freedom. That’s a high price to pay.

But freedom isn’t free.

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Boo-Fucking-Hoo

 

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FREEDOM!!!

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Fuck you Nanny Bloomberg!:

Judge blocks NYC Mayor Bloomberg’s large soda ban

A New York state judge on Monday blocked New York City Mayor Michael Bloomberg’s large soda ban — set to go into effect on Tuesday — calling the law “arbitrary and capricious.”

The New York Post reports:

A state judge on Monday stopped Mayor Bloomberg’s administration from banning New York City restaurants and other venues from selling large sugary drinks, a major defeat for the mayor who has made public a health initiatives a cornerstone of his tenure at city Hall.

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Seriously, fuck you.

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#StandWithRand – The Epic Filibuster

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ICYMI:

12 Hours And 54 Minutes Later, The Junior Senator From Kentucky Yields The Floor

Fin.

For more than half of an almost magical day, Sen. Rand Paul treated American political junkies to something we haven’t seen much of lately: senators doing senator stuff. Dripping with decorum, “Thank yous” and gentlemen from everywhere, we were treated to a drawn-out grand political spectacle the likes of which doesn’t happen much in the short attention span era.

Sen. Paul relentlessly made his case for civil liberties, receiving support from Democrat Ron Wyden of Oregon, as well Code Pink and the American Civil Liberties Union, two groups not known for cheer leading Tea Party politicians. From his own party, Paul was backed up by Ted Cruz, Marco Rubio, Mike Lee (who did the heavy relief lifting to spell Paul), as well as host of others who showed up to lend support in the eleventh hour. Several members of the House were also seen milling about as the evening wore on. He even got a support tweet from Van Jones.

And all he wanted was some assurance from The Lightbringer that he wouldn’t get drone-happy with his own citizens. He didn’t get it.

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When I was a kid I imagined that this was what Congress was like – elected leaders holding polite debates on important issues of the day. The reality is very different, but for one shining moment Hollywood came to life.

You don’t have to like Rand Paul or agree with him on other issues, but yesterday he was right on. Unfortunately too many people closed their minds to his words because of his infamous father and the party he belongs to. (He’s not just a Republican, he’s one of them “Tea Party” types.) That’s really too bad because they missed a helluva show.

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Fascinating day: Tea Party Senator filibusters torture-supporting CIA nominee over civil liberties, while Dem establishment mocks & fumes—
Glenn Greenwald (@ggreenwald) March 07, 2013

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Will it make a difference? I have no idea.

But it was great to watch. You had to have CSpan because the networks ignored it but the Twitterverse followed every word. The drama spiked when other Republicans showed up and joined in. Then Harry Reid tried to cut it off but failed. Before it was over even Mitch McConnell made an appearance.

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Like Pulling Teeth

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Subtitled: “Scumbag Racist Senator Harasses Noble Black Attorney General”

Ted Cruz Goads Eric Holder Into Admitting That Killing Americans With Drones On U.S. Soil Is Unconstitutional

On Tuesday, the Department of Justice sent shockwaves through the nation when Attorney General Eric Holder informed Sen. Rand Paul (R-KY) in writing that the White House would be within its legal authority to execute an American citizen via drone on U.S. soil if that person was determined to pose a threat to national security. On Wednesday, testifying before a Senate panel, Holder was prodded repeatedly about this assertion by Sen. Ted Cruz (R-TX). Holder eventually admitted that it would not be constitutional to execute an American citizen without due process.

“In your legal judgment, does the Constitution allow a U.S. citizen on U.S. soil to be killed by a drone?” Cruz asked Holder pointedly.

“For sitting in a café and having a cup of coffee?” Holder replied. Cruz clarified that his hypothetical individual subject to a drone strike did not pose an “imminent and immediate threat of death and bodily harm,” but that person is suspected to be a terrorist.

“I would not think that that would be an appropriate use of any kind of lethal force,” Holder replied.

“With all respect, Gen. Holder, my question wasn’t about appropriateness or prosecutorial discretion. It was a simple legal question,” Cruz clarified.

“This is a hypothetical, but I would not think, that in that situation, the use of a drone or lethal force would not be appropriate,” Holder replied.

“I have to tell you I find it remarkable that in that hypothetical, which is deliberately very simple, you are not able to give a simple, one-word answer: no,” Cruz added. He said he think that his scenario would constitute a “deprivation of life without due process.”

Holder agreed and added that lethal force in Cruz’s case “would not be appropriate.”

“You keep saying appropriate – my question isn’t about propriety,” Cruz goaded. “My question is about whether something is constitutional or not.”

When Cruz was about to abandon his line of questioning after a number of equivocations from Holder, the attorney general clarified that he was saying “no” such actions would not be constitutional.

“Goad” isn’t the term I would have chosen. It was more like pulling teeth. He never did say unequivocally “No, it would not be constitional” though, did he?

Damn racists.

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How Do We Reconcile Due Process And Assassination?

No court for drone oversight, says GOP

Senate Republicans on Tuesday ruled out placing armed drone strikes under the authority of a special court, arguing the move would be a dangerous intrusion on presidential power.

Sen. Dianne Feinstein (D-Calif.) last week raised the idea of creating a new oversight court for drones that would be patterned after the checks and balances that govern surveillance.

But senior Republicans in the Senate dismissed that plan as unrealistic, and warned it would undermine critical counterterrorism efforts.

“I think it is a terrible idea,” Sen. Lindsey Graham (R-S.C.) told The Hill.

A new court would be “the biggest intrusion … in the history of [this] country” on the president’s authority as commander in chief, Graham said.

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Except for a brief period in the 70′s the government has always had the power to legally kill you in cold blood and with premeditation and malice. It’s called the death penalty. Death is the ultimate sanction, but we reserve it for the most heinous of crimes. Because it is such a harsh penalty we make the government jump through all kinds of hoops before it can be used. We call those hoops “due process”.

The Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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“No person shall be … deprived of life … without due process of law.” That’s pretty straightforward. (Notice that it says “person” and not “citizen”.)

Typically “due process” includes a criminal trial where the defendant is represented by an attorney and has the opportunity to contest the accusations against him in front of a judge and jury as well as a legal appeals process. These days a lot of people would agree that the law provides defendants with too much due process. (Those people have never been charged with a crime.)

Congress Shall Have Power To . . . Declare War

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Rand Paul to John Kerry: If it was wrong to bomb Cambodia without Congress’s approval, why is bombing Libya without approval okay?

Excellent, and not just the Libya stuff. Stick with it for Paul’s questions about how smart it is to be arming the Muslim Brotherhood in Egypt when Morsi is already wheezing about Jews controlling the media in official diplomatic sessions with the U.S. If you’re wondering why it fell to Paul to ask this question instead of any of the more senior senators who preceded him, it’s because the Senate was perfectly happy to have Obama act unilaterally on Libya. The Iraq war authorization came back to haunt many of them; no one knew at the time how messy Libya might get. O did them a favor, left and right, by freeing them from a tough vote. But Kerry can’t say that so instead he squirms through a few minutes of how the two bombing campaigns are different because they just are. Frankly, Paul let him off easy. You could, if you chose, defend U.S. actions in Cambodia as a cross-border extension of the war already being fought in Vietnam. No such defense for Libya; if anything, the Libya war cut against the AUMF against Al Qaeda that was passed after 9/11 because, as we’ve recently learned, eliminating Qadaffi was actually a boon to jihadist groups like AQ.

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We have a president, not a king. Article One, section 8 of the United States Constitution gives Congress the exclusive power to declare war, something they haven’t done since 1941 even though we have been involved in at least five wars since then.

While it is true that Congress has effectively delegated some of that authority under the War Powers Act, nowadays presidents don’t even bother following it’s lax provisions. They just do what they want and Congress lets them.

I’m old enough to remember when Democrats cared about illegal wars. What a quaint notion that is today.

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Don’t Do The Crime If You Can’t Do The Time

Aaron Schwartz

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There have been a lot of twisted knickers over this story:

Did Holder’s Department Drive an Internet Pioneer to His Death?

In January 2011, Reddit co-founder, RSS creator, and Internet-freedom activist Aaron Swartz was arrested for downloading millions of academic articles from JSTOR in protest of the weighty fees charged for accessing articles, and those dollars going to publishers instead of writers.

“We need to take information, wherever it is stored, make our copies and share them with the world,” Swartz wrote in 2008. “We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks.”

JSTOR declined to pursue any civil action against Swartz, and even eventually made millions of its articles accessible to the public free of charge. MIT, whose archive was hacked while Swartz was a fellow at Harvard (which gave him access to JSTOR), was less forgiving.

The Justice Department, though, slapped Swartz with charges including wire fraud and computer fraud, altogether carrying the possibility of 35 years behind bars and up to a $1 million fine. Prosecutors eventually offered Swartz a deal to avoid trial in which he’d have to plead guilty to all 13 charges and spend six months behind bars.

Two days later, on Jan. 11, 2013, Swartz hung himself in his Brooklyn apartment. He was 26 years old.

His grieving father, Bob Swartz, told the Los Angeles Times that people should know “the evidence showed clearly that Aaron did not break the law, that the network was open, that access was not unauthorized by MIT, and that he was not guilty of any crime.”

“He was killed by the government,” he declared at his son’s funeral.

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The death of Aaron Schwartz is tragic, but there is no one to blame but Aaron Schwartz.

Schwartz didn’t like the law, so he knowingly and intentionally broke it in protest. Then he got arrested. Rather than pay the price for his actions he committed suicide.

I believe in the rule of law. That means we all have a duty to either obey the law or face the consequences. Presidents are supposed to obey the law. So are reporters. There is no special dispensation for law-breaking by protestors. Calling your law-breaking “speech” does not give you a get out of jail free card.

I realize it’s not a perfect system, but just because the president gets away with breaking the law doesn’t mean we don’t have to obey the law anymore. If you disagree with a law, get it changed. But if you break it, be ready to pay the price.

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If it ain’t broke . . .

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New York Times:

Let’s Give Up on the Constitution

AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

[...]

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

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Funny, but I was just thinking last night how lucky we got two and a quarter centuries ago. Look at how many times in history that one dictatorship gets replaced with another. Or worse, a dictatorship gets followed by a bloody civil war. Think about the French Revolution or the former Yugoslavia.

With one notable exception we have managed to maintain internal peace and stability in this country since its founding. It hasn’t been perfect or entirely peaceful. There have been riots and assassinations. We paid a high cost for staying together as a nation, including the acceptance of slavery and Jim Crow segregation. African Americans bore the brunt of that cost.

But we muddled through somehow. How many nations on this planet have managed to keep the same government in place for over two centuries? Think about it.

Could we come up with a better system? Maybe. But it still won’t be perfect. But if we change what we have now we might fix some problems but we would also create new ones.

Also consider this – the reason that the Constitution gets in the way from time to time is that some individual or group invokes it. Sometimes it’s the other guys who do it. Some times it’s our side that feels the need to throw a monkey wrench into whatever the majority is up to.

The real problem isn’t that the Constitution gets in the way, it’s that it doesn’t get in the way often enough. (Can you say “Obamacare”?)

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Pretzel Logic

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Volokh Conspiracy:

En Banc Sixth Circuit Voids Michigan Civil Rights Initiative

By an 8-7 vote, the U.S. Court of Appeals for the Sixth Circuit has held that Michigan’s Proposal 2, aka the Michigan Civil Rights Initiative, is unconstituional. The Court split along predictable ideological lines, with Democratic nominees siding with the plaintiffs, and Republican nominees voting to uphold the initiative.

Judge Cole delivered the opinion for the court, joined by judges Martin, Daughtrey, Moore, Clay, White, Stranch, and Donald. His opinion begins:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

In other words, it is unconstitutional for a state constitution to prohibit the consideration of race by state actors.

So prohibiting discrimination on account of race is (wait for it) racist.

Go figure.

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Big Brother Barack Is Watching You!

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From Naomi Gilens, ACLU Speech, Privacy and Technology Project:

New Justice Department Documents Show Huge Increase in Warrantless Electronic Surveillance

Justice Department documents released today by the ACLU reveal that federal law enforcement agencies are increasingly monitoring Americans’ electronic communications, and doing so without warrants, sufficient oversight, or meaningful accountability.

The documents, handed over by the government only after months of litigation, are the attorney general’s 2010 and 2011 reports on the use of “pen register” and “trap and trace” surveillance powers. The reports show a dramatic increase in the use of these surveillance tools, which are used to gather information about telephone, email, and other Internet communications. The revelations underscore the importance of regulating and overseeing the government’s surveillance power. (Our original Freedom of Information Act request and our legal complaint are online.)

Pen register and trap and trace devices are powerfully invasive surveillance tools that were, twenty years ago, physical devices that attached to telephone lines in order to covertly record the incoming and outgoing numbers dialed. Today, no special equipment is required to record this information, as interception capabilities are built into phone companies’ call-routing hardware.

Pen register and trap and trace devices now generally refer to the surveillance of information about—rather than the contents of—communications. Pen registers capture outgoing data, while trap and trace devices capture incoming data. This still includes the phone numbers of incoming and outgoing telephone calls and the time, date, and length of those calls. But the government now also uses this authority to intercept the “to” and “from” addresses of email messages, records about instant message conversations, non-content data associated with social networking identities, and at least some information about the websites that you visit (it isn’t entirely clear where the government draws the line between the content of a communication and information about a communication when it comes to the addresses of websites).

Bookmark this post as a reference for the next time some Vile Prog tells you “The Republicans are worse!”

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Freedom of Speech? Maybe.

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Nakoula Basseley Nakoula – AKA ‘Sam Basile’ – questioned in anti-Islam video

As protests over an anti-Islam film continue in a growing number of countries, the California man thought to be behind the video titled “Innocence of Muslims” has been taken in for questioning by federal authorities.

Just after midnight Saturday morning – his face and head covered – a man identified as Nakoula Basseley Nakoula was taken from his home in Cerritos, Calif., by Los Angeles County sheriff’s deputies for what law enforcement officials described as a “voluntary interview.”

[...]

But at this point in the unfolding saga, if Nakoula is to remain in custody at all it probably will be related to his breaking the rules of his probation on wholly unrelated charges.

Nakoula pleaded no contest in 2010 to federal bank fraud charges in California and was ordered to pay more than $790,000 in restitution, the Associated Press reports. He was also sentenced to 21 months in federal prison and was ordered not to use computers or the Internet for five years without approval from his probation officer. He served about a year in prison.

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First of all, I do not believe that this crappy YouTube video that was posted six months ago caused riots outside our embassies half-way around the world. The video was, at most, a pretext for pre-planned terrorist attacks.

But what I want to know is this: Why the cops are talking to this guy in the first place? What crime were they investigating?

I don’t know who Nakoula Basseley Nakoula is. Until yesterday I never even heard of him. Joe Cannon is busy spreading tin-foil conspiracies tying Nakoula to the CIA or Mossad or the Illuminati or something. I really don’t give a fuck who he is. I don’t care what his motives were either.

Let’s say for the sake of argument that Nakoula is some Islamophobic religious nut-job who made the video just to piss off a bunch of people over in Goatfuckistan. Let’s go ahead and assume he was hoping they would go apeshit and start rioting.

So what? That is perfectly legal in our country.

So what crime were the cops investigating when they went to talk to Nakoula? Why did the White House ask YouTube to pull the video? That’s censorship.

Freedom of speech is a constitutional right. It does not only apply to people we like and ideas we agree with. In the words of Larry Flynt, “If the First Amendment will protect a scumbag like me, it will protect all of you.“

The United States government has no business apologizing for our freedom. It’s their job to defend it.

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Chick-fil-A and Citizens United

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Glenzilla:

The essence of Fang’s argument is this: it’s not merely that Chick-fil-A has a President who expressed anti-gay views. If that’s all it was, says Fang, then he “would agree” that they have the right to do business without being punished by city officials. But, he argues, this business — a corporation — donates money to conservative political groups which Fang dislikes. He then reasons: since corporations are not persons, they have no Constitutional rights and can therefore be punished for their political activism without running afoul of the free speech guarantee in the First Amendment:

Chick-Fil-A CEO Dan Cathy’s family manages a charity called the WinShape Foundation, which dispenses millions of dollars to anti-gay organizations, including Focus on the Family. Where does that money come from? According to tax disclosures, the WinShape Foundation received $8,067,161 from Chick-Fil-A corporation and $11.5 million from CFA Properties, a corporate affiliate of Chick-Fil-A registered in Delaware in 2010.

If a corporation uses its general treasury funds to finance political advocacy, does that mean any politician that takes action against that corporation in response to that advocacy is violating the First Amendment? It’s a question that comes down to whether you believe corporations have rights akin to human beings.

Leave aside the fact that all 9 justices of the Supreme Court — from the most liberal to the most conservative — believe, and in Citizens United said, that corporations have free speech rights under the First Amendment, and that restrictions on how they spend their money for political advocacy can violate the First Amendment’s free speech clause.

As Justice John Paul Stevens, writing on behalf of the liberal dissenters in that case, wrote (emphasis added): “of course . . . speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation,” and ”no one suggests the contrary“ (the debate in Citizens United was not whether corporations have First Amendment free speech rights — everyone on the Court agreed they do — the question was whether it was Constitutionally permissible to limit those free speech rights in order to achieve a compelling state interest). The notion that Citizens United turned on whether corporations are “persons,” and that the majority and dissent disagreed on this, is pure and total myth.

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There is probably no court decision that has been more misrepresented and misunderstood than Citizens United. Let me see if I can explain it in simple terms.

1. People have constitutional rights.

2. Corporations are associations of people (just like unions, advocacy groups, clubs and political parties).

3. Associations of people maintain the constitutional rights of the individual members.

What throws people off is the phrase “corporations are people.” Obviously a corporation is not a human being. It is a business entity. But as a business entity it can, under the law, do many of the things that people can do, like enter into contracts, sue and be sued, and own property.

BTW – All the major newspapers and news networks are corporations. They still enjoy freedom of the press, don’t they?

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Today is the big day!

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Shortly after 10 am Eastern time today the fate of Obamacare will be announced.

I’m gonna go out on a limb and predict that SCOTUS will strike down the mandate as unconstitutional. That’s a death sentence even if they don’t throw out the rest of the Affordable Care Act.

I freely admit that I may be guilty of wishful thinking. I think Obamacare is a bad program and Congress needs to start over and do it right. Either way it will not be good for Obama.

There are a lot of opinions flying around about this topic, but like I said a long time ago there are only five opinions that count. Those five opinions belong to whoever makes up the majority of the Supreme Court decision.

Supreme Court justices serve as long as they want to. They can’t be fired, and though technically they can be impeached as a practical matter they are untouchable. We can’t even cut their pay.

They are literally a law unto themselves. They make their own rules and follow or ignore those rules as they please. They aren’t bound by precedent, and they have on more than one occasion reversed earlier rulings. The rules of ethics don’t apply to them.

They choose what cases they will hear and ignore the rest.

But they are, by far, the smallest branch of our federal government. They have no means of enforcing their rulings. Besides themselves they have only some clerks and administrative staff, as well as some bailiffs to protect them and keep order.

So why do we listen to them?

Tradition. Because the system works, mostly. Because nobody has come up with a better way.

Thomas Paine said, “In America the law is king.” Those nine black-robed justices are the king’s high priests. Or, as the late Justice Robert H. Jackson once said, “We are not final because we are infallible, but we are infallible only because we are final.“

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Ezra Klein is an idiot

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Ezra Klein:

How Republicans made it possible for the Supreme Court to rule against the mandate

But permission structures aren’t just for elections. Over the past two years, the Republican Party has slowly been building a permission structure for the five Republicans on the Supreme Court to feel comfortable doing something nobody thought they could do: Violate the existing understanding of the Commerce Clause and, in perhaps the most significant moment of judicial activism since the New Deal, overturn either all or part of the Affordable Care Act.

The first step was, perhaps, the hardest: The Republican Party had to take an official and unanimous stand against the wisdom and constitutionality of the individual mandate. Typically, it’s not that difficult for the opposition party to oppose the least popular element in the majority party’s largest initiative. But the individual mandate was a policy idea Republicans had thought of in the late-1980s and supported for two decades. They had, in effect, to convince every Republican to say that the policy they had been supporting was an unconstitutional assault on liberty.

[...]

When this campaign began, it was unthinkable that the Supreme Court would indulge it, even if some on the Supreme Court were sympathetic to its aims. “There is a less than one-per-cent chance that the courts will invalidate the individual mandate,” Kerr said at the time. Today, it’s entirely thinkable that the Supreme Court will indulge it, and that means that the members of the Supreme Court, who care deeply about protecting their institution’s legitimacy, are free to rule in whichever direction they want. We’ll find out what direction that is on Thursday.

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Unthinkable? Ezra really needs to get out more. There were a lot of people (myself included) who thought the Obamacare mandate was unconstitutional right from the start.

This kinda pisses me off because Ezra is impugning my profession. I actually have a lot of respect for judges. SCOTUS may be a lot of things but they generally aren’t political. Ideologues, yes, political no.

I’m not saying I always agree with their decisions, because I don’t. Right now we have four SCOTUS justices that are very conservative and another that is moderately conservative. That’s no secret. But how come no one ever questions the integrity of the four “liberal” justices?

What lawyers want from judges more than anything else is consistency. In a given set of circumstances you want to know what the judge will do. That way you can make plans and give good advice.

Right now the only inconsistent SCOTUS justice is Anthony Kennedy. He is usually the swing vote in every 5/4 decision.

US v. Lopez, 514 U.S. 549 (1995) was the first SCOTUS decision since the New Deal to set limits to congressional power under the Commerce Clause of the Constitution. Kennedy, Scalia and Thomas were all part of the majority in that decision.

If SCOTUS strikes down all or part of Obamacare it will be because they decided it was in excess of the Commerce Clause. If SCOTUS upholds the individual mandate it will extend congressional power farther than ever before. Either way, it will have nothing to do with any “campaigns.”

BTW – John W. Smart stole this post from me and posted it first.

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Stupid should hurt

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Seriously:

Supporters Slow to Grasp Health Law’s Legal Risks

With the Supreme Court likely to render judgment on President Obama’s health care law this week, the White House and Congress find themselves in a position that many advocates of the legislation once considered almost unimaginable.

In passing the law two years ago, Democrats entertained little doubt that it was constitutional. The White House held a conference call to tell reporters that any legal challenge, as one Obama aide put it, “will eventually fail and shouldn’t be given too much credence in the press.”

Congress held no hearing on the plan’s constitutionality until nearly a year after it was signed into law. Representative Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. “Are you serious?” she asked with disdain. “Are you serious?”

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I’m no constitutional scholar, but I have taken a class or two on the subject. The first thing that jumps to mind is the phrase “enumerated powers.” While regulating interstate commerce is indeed one of Congress’ enumerated powers, the idea that that authority extends to making people purchase health insurance from private companies is a quantum leap from any previous legislation.

Obamacare was not only supposed to be his signature policy victory, it was supposed to complete the New Deal and Great Society social safety net. It is inconceivable that something so important wasn’t built on a firm constitutional foundation.

Was failure the plan?

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