Legal Memo-Random

Is there a draft in here, part...3?

Via Atrios, this Yahoo story says Republican Senator Chuck Hagel says we may need the draft again.

The main problem with the idea of a draft for the Iraqi conflict is simple: Those who don't believe that Iraq was a part of our War on Terrorism, often believe that Iraq is a war of choice. Especially now that we have not found any WMDs closer than a turkey farm in Libya. Yes, toppling Saddam Hussein was a great thing - we have rid the world of a murderous thug, and that can never be regarded as a bad thing. As Get Your War On opined once, its nice to see our tax dollars going towards removing evil dictators rather than proping them up.

The problem is, if we went to Iraq to destroy an evil dictatorship (ie, the Hitchens argument...he's funny when he ignores reality), then while the war with Iraq was for a good and just and noble cause (lets ignore all of the other brutal dictatorships we ignore or are even pals with), it was still an elective war.

If you are going to draft people, uproot them from their lives and force them to risk their survival on a war like that (especially one where people were lied to about the existence of WMDs, and the establishment of a link between Saddam Hussein and al Qaeda has still proved to be virtually non-existent, pre-war), what is going to happen when we face a real threat?

Lets leave the idea of the draft in the dustbin of history. When Iraq invaded Kuwait in the early 90's, people lined up to join the military at the local recruiting stations. The reason being, of course, was that Iraq at the time had an enormous army, Kuwait was our ally, and since this wasn't too long after Israel bombed the nuclear reactor, they seemed like a bona fide threat.

Now, we need more soldiers to put down an insurgency that doesn't want us there? Sorry, people aren't going to line up for that.

When America comes under real threat, don't worry. People will line up at the military recruiters, they will get their own weapons, etc. They will do whatever needs to be done to win the war. And had al Qaeda had a little more success, thats exactly what would have happened.

Government brief in Moussaoui Case

Here is a copy of the redacted brief filed on behalf of the government with the Court of Appeals in the case of Zacarias Moussaoui. Via Findlaw.

The government's arguments are so surreal, that one need not read the entire brief to realize this. In fact, the first actual sentences from the brief betray the desperation of the government in this case:

The Government appeals from an order that fundamentally alters the prosecution of this case and substantially limits the information that will go to the jury.

Wait. Lets take a deep breath, class. That was a mouthful.

Perhaps it would do some good to remind us why we are at this point in the Zacarias Moussaoui case. Quick refresher: Moussaoui is the only person to have ever been charged with anything in connection with the September 11, 2001 attacks. Nobody else has been charged, although we allegedly hold a number of "master minds" connected with the case, including Khalid Shaik Mohammad and Ramzi bin al Shibh. The government's case has hinged on one of two theories, depending on which theory they feel like presenting: Either Moussaoui was the 20th hijacker, destined to be on one of the 4 planes, or he was the 5th pilot, destined to fly a 5th plane into some target, usually assumed to be the White House.

Moussaoui's defense is rather simple, if not eloquent. His defense is that he is in fact a member of al Qaeda, but that he was not a part of the September 11, 2001 plot. Moussaoui is representing himself, usually considered to be a foolish move. But with the help of his consulting attorneys assigned to the case, has done an adequate job of holding the prosecution at bay. Most on his side is the fact that Judge Leoni Brinkema, the Judge hearing this case, seems to have a firm understanding of the law and application, and is not intimidated by the fact that this is a terrorism related case.

Over the past several months, Moussaoui has asked to depose Khalid Shaik Mohammad and Ramzi bin al Shibh, described above. Judge Brinkema has granted those requests. Moussaoui argues that as the alleged masterminds of the September 11, 2001 plots, they can testify and prove that Zacarias Moussaoui was not, in fact, a part of these plots. Thus, bin al Shibh and Mohammad constitute exculpatory evidence/testimony (which in theory, Moussaoui should be entitled to from the prosecution).

The government has repeatedly said that these two witnesses are "unavailable" due to national security (which some people take to mean that we have tortured them to the point that to present these two individuals would pose a major embarassment to the US government and its treatment of suspects).

Following repeated refusals by the government to produce these two men, Judge Brinkema has sanctioned the prosecution by barring:

any evidence or argument that the defendant was involved in, or had knowledge of, the planning or execution of the attacks of September 11, 2001"

(quoting from the government's brief). Therefore, they cannot prove the death penalty elligible charges.

So essentially, the argument is that the government is being blocked from presenting its full case, and that to present its full case, it must block Moussaoui from presenting a full defense.

Remember - Mohammad and bin al Shibh are in the control of the US government or its agents

This is being done in our name. What was it that Ben Franklin said about sacraficing essential liberties and not getting safety in return?

Tribunals coming...to a theater near you

Apparently, military tribunals for acussed terror suspects are right around the bend. Or at least, so says this article from Findlaw.

"I think it's safe to say that our start is imminent, soon," said Col. Frederic L. Borch III, who oversees nine prosecutors in a Pentagon office set up to handle the upcoming trials. Borch, speaking to an American Bar Association gathering, would not be more specific.

For a good chuckle, we get:

"Our goal is to make them fair," defense lawyer Col. Will A. Gunn told the ABA group. Gunn said he and his team of defense lawyers will make every legal argument they can, including a basic challenge to the U.S. authority to hold the trial at all.

Wait...you mean fair like the Zacarias Moussaoui trial, where a defendant is denied the right to access witnesses who may prove exculpatory, even though those witnesses are within the control of the prosecuting government???

Or wait...perhaps by fair, Gunn means the part where we do away with juries, manipulate the rules of evidence, and hold the trials in a foreign country (if they are in Guantanamo Bay, Cuba), thousands of miles away from home?

Is it possible that by "fair" they mean "more likely to get a conviction"???

Here is my prediction:

The government is scared to death of the Zacarias Moussaoui case. Here is a guy who is for the most part, going it pro se - in an incredibly beligerent manner - lets remember that this guy is the only person arrested and charged in the United States with involvement in the 9/11 plots. And yet he's still got the government on the ropes. The evidence suggests that the only evidence they have is that Moussaoui is an al qaeda operative - thats nice, and that'll get him a conviction, but (A) it will not get him a death sentence and (B) it will result in a not guilty verdict for the 9/11 charges. This wil be unacceptable to most people. What the evidence does not suggest is that Moussaoui has any involvement with the actual 9/11 plot - and there are people out there who can prove it.

So here is what we can learn:

• (1) Initiation of military tribunals is a de facto concession from the government that it believes that using the civilian courts for Moussaoui was a major mistake. It cannot rectify this mistake easily with Moussaoui, because the image of our government having to forum shop what is arguably one of the most important cases in US history is a terrible image. What, you can't convict the guy? You have to change the rules? Not good at all.


• (2) I would guess that there will be a first "safe" test case - one where we can run the military tribunal, have our appeals and go through the system and get an execution. We want to establish precedent here.


• (3) I would imagine that there is a hope that we try and execute Khalid Shaik Mohammad and Ramzi bin al Shibh before the conclusion of the Zacarias Moussaoui tangle, and definitely before anyone else goes through the civilian system.

Why the cynical take? There are others in the pipeline. Jose Padilla is currently being held by the US in a military prison for his alleged role in the so-called dirty bomb plot. Lets remember that when the idea of military tribunals was brought forth, we were reassured repeatedly that this would never be used on an American. Jose Padilla is an American (and I believe that there are at least 1 or 2 others).

It would seem at least like a possibility that the desire to get the tribunals rolling is because they've gotten all they can out of the likes of Khalid Shaik Mohammad and Ramzi bin al Shibh, and now they are eager to get rid of them in case the courts uphold a defendant's right to question them.

Thats pretty messed up, if true.

Did Plame Leaker violate USA Patriot Act?

Talk Left with an informative piece on how the person who leaked Valerie Plame's name as an undercover operative may have violated the USA Patriot Act.

I find the argument made to be a bit of a stretch, but it would be nice to a little more seriousness return to trying to find the leaker(s) - you know - something other than White House Spokesman (McClellan?) saying that he knew (through the power of psychic friends network?) that Rove and others were not involved.

RIAA Has More Surprises in Store

The RIAA has decided to go after an additional 204 online music swappers on top of the roughly 261 alleged swappers pursued a few months ago. All allegedly have over 1,000 songs on their computers.

See CNN story here for more.

However, because of the incredibly bad publicity the last round received (something about suing a 12 year old girl who lived in the projects, but you already knew that), sternly worded warnings are being sent before suits are filed:

The letters give the recipients 10 days to contact the RIAA to discuss a settlement and avoid a formal lawsuit. The RIAA declined to identify the individuals, but said they were sharing an average of more than 1,000 songs on their computers.

I have not migrated my blogspot archives over (can I really be that lazy?), but you can see my stance here (grammar and spelling was a little sloppy that day - sorry).

As an aside, Mithras raises an excellent point about some of the dangers inherent in file sharing (ie., malicious code trashing your network), and I have made the point that if you use peer to peer file sharing at work, you could be exposing yourself to serious litigation from your employer if you download something that trashes the network.

If you really hate the music industry, don't give them a reason to extort thousands of dollars from you with file sharing.

By the way, if you bought one of those $25 KaZaa interfaces, I think that you are exposed here. This is the excuse that the mother of the 12 year old used. It is not a valid defense. I can't just sell you my neighbors car one day.

Partial Birth Ban's Partial Flirtation with Facts

William Saletan of Slate takes some pro-lifer's to task for implying that partial birth abortion intercepts a baby on the way to being born and aborts them.

See article here.

Saletan leads them onto the branch with:

watched the whole Senate debate yesterday. I lost count of how many times pro-life senators used language implying that the procedure they were banning was a birth interrupted by an abortion. The bill's sponsor, Sen. Rick Santorum, opened the debate by saying, "The term 'partial birth' comes from the fact that the baby is partially born, is in the process of being delivered. … Here is this child who is literally inches away from being born, who would otherwise be born alive." Majority Leader Bill Frist, the Senate's only doctor, concluded the debate by describing the procedure as "destroying the body of a mature unborn child."

And then cuts down the branch with this:

That's just false. This procedure doesn't take place anywhere near the appointed hour of birth. If you paid close attention to the Senate debate, you might have noticed the part where Santorum said the procedure was performed "at least 20 weeks, and in many cases, 21, 22, 23, 24 weeks [into pregnancy], and in rarer cases, beyond that." He didn't clarify how many of these abortions took place past the 20th week. A full-term pregnancy is 40 weeks. In 1992, the Supreme Court mentioned that viability could "sometimes" occur at 23 or 24 weeks. Santorum described a 1-pound fetus as "a fully formed baby," noting that while it was only at 20 weeks gestation, it had a complete set of features and extremities. But according to the National Center for Health Statistics, the survival rate for babies born weighing 500 grams or less—that's 1 pound, 1 ounce or less—is 14 percent.

Senate approves spam bill

Proving to the world that it will not be outdone in terms of unenforceable laws, the US Senate passed a bill that would put the clamp down on spammers over the internet, setting up a (get this) do-not-spam registry (similar to their do-not-call registry for the telephone).

See CNN article here for more.

Somehow, I think that John Abu, closest friend and advisor of the Minister of Something-or-Other in Nigeria with $35 million (US Dollars, of course), is going to take immediate notice that I am on some registry.

The bill would also...

not outlaw all unsolicited commercial e-mail, focusing instead on the fraudulent or deceptive messages estimated to make up two-thirds of all unsolicited commercial e-mail.

Marketers who falsify return addresses or routing information, hide their pitches behind misleading subject lines such as "Re: your request" or promote body-enhancement pills or other fraudulent products would face jail sentences of up to a year and fines of up to $1 million; repeat offenders could face jail terms of up to five years.

The impact here will be a drop in the bucket. It really would.

Instead, I would much rather see enforcement geared towards stopping (not saying that could be done either) the use of spybots and other malicious programs inserted into your computer without your permission. Companies like Gator say that they ask for permission before installing these programs. That is complete and utter BS. Perhaps they do sometimes but the fact is that I have found their programs on my computer, and I've never accepted permission. Several months ago, a few computers at our office were completely overrun by spybots that could not be removed (ie, you'd run Spybot Search & Destroy, and it would eliminate them, and then within minutes they'd reinstall themselves - even I somehow ended up with programs, because of our network infiltration, that installed themselves and were listed in the task manager, but somehow could not be removed via normal avenues).

So perhaps we should call this the feel good legislation of the 2003 term. Everyone can stand behind it and its message, even if in reality it will not do anything.

Besides, I highly doubt anyone selling "penis enlargement pills" that probably don't work (see Do Penis Enlargement Pills Work? blog) really cares about other laws or ethics involved.

Partial Birth

Looks like Congress has passed a partial birth abortion ban, with a signature almost certain to come from President Bush.

The bill appears to have no exception for the health of the mother.

I think that this speaks for itself.