Many Democrats and their allies complain of writing discrimination in to the Constitution/law when Republicans take action that supports and endorses traditional values. However, in H.R. 1 American Recovery and Reinvestment Act they have written in to the law discrimination of their own. They ban funding from going to institutions or portions of institutions that teach courses with sectarian content at the Post-Secondary level.
Showing posts with label Legal Briefs. Show all posts
Showing posts with label Legal Briefs. Show all posts
Saturday, February 14, 2009
Friday, June 22, 2007
Non-Executive privelege
Vice President Richard B. Cheney once claimed that he was covered by executive privilege and therefore he shouldn't have to release the documents relating to the energy task force that he initiated. This 2004 argument was only partially upheld by the Supreme Court. It was upheld in the sense that the courts are not the correct place to decide secrecy issues.
However, now Mr. Cheney is claiming that he is not a part of the executive branch. This extraordinary claim is coming during a dispute with the National Archives and Records Administration over classified documents that would normally be placed in the care of the Archives. The Office of the Vice President appears to be part of the executive branch for the purposes of 44 U.S.C. § 2207 which covers Vice Presidential records. Executive Order 13233 Sec. 11 also speaks to this topic.
However, now Mr. Cheney is claiming that he is not a part of the executive branch. This extraordinary claim is coming during a dispute with the National Archives and Records Administration over classified documents that would normally be placed in the care of the Archives. The Office of the Vice President appears to be part of the executive branch for the purposes of 44 U.S.C. § 2207 which covers Vice Presidential records. Executive Order 13233 Sec. 11 also speaks to this topic.
Thursday, May 10, 2007
Iglesias' Quest
Fired U.S. Attorney David Iglesias embraces the media in his quest for vindication
David Iglesias stands against the fence at the edge of his backyard worrying about the "ambience" - a rock that's supposed to bubble forth water at the flip of a switch.
It's not bubbling forth.
"I just got it fixed, too," he says, fetching a hose.
But just then, happily, comes the water. When his wife, Cyndy, calls some minutes later, he'll recount the scene in their shared language of Scripture.
David Iglesias stands against the fence at the edge of his backyard worrying about the "ambience" - a rock that's supposed to bubble forth water at the flip of a switch.
It's not bubbling forth.
"I just got it fixed, too," he says, fetching a hose.
But just then, happily, comes the water. When his wife, Cyndy, calls some minutes later, he'll recount the scene in their shared language of Scripture.
Wednesday, March 7, 2007
US “Patriot Act” Attorneys
The USA Patriot Improvement and Reauthorization Act was signed in to law and became Pub. L. 109-177 on March 9, 2006 with §502 which grants the power to appoint “permanent” interim US Attorneys.
The provision amends 28 U.S.C. §546 and states the following:
There is no time limit within which the President must submit the nomination to the Senate for the “advice and consent” required by the Constitution and § 541 for a permanent appointment. The repealed language of §546 set the time limit for an interim appointment at 120 days so there would not be a US Attorney that went without confirmation by the Senate. The USA Patriot Improvement and Reauthorization Act was signed in to law and became Pub. L. 109-177 on March 9, 2006 with §502 which grants the power to appoint “permanent” interim US Attorneys.
The provision amends 28 U.S.C. §546 and states the following:
There is no time limit within which the President must submit the nomination to the Senate for the “advice and consent” required by the Constitution and § 541 for a permanent appointment. The repealed language of §546 set the time limit for an interim appointment at 120 days so there would not be a US Attorney that went without confirmation by the Senate.
This fuels the current controversy surrounding the resignation of 7 former U.S. Attorney’s four who appeared before the U.S. Senate Judiciary Committee yesterday to testify about their cases. This was the second in a series of hearings looking into the employment practices of the Administration.
Official Photo of former U.S. Attorney David Iglesias
Source: Timeless Images Photography
The most obvious of the cases is that of David Iglesias who received phone calls from lawmakers about a public corruption case involving Democrats shortly before the election last November. Sen. Pete Domenici and Rep. Heather Wilson both admitted making the calls but denied applying pressure to Mr. Iglesias, who claims that Mr. Domenici asked specifically about timetables and speeding up indictments. This behavior is in violation of the ethics rules of the Senate and House as well as possibly the U.S. Code.
However, Mr. Graham explained while Mr.. Sessions defended the Administration’s actions. Mr. Sessions was more probing in his questions and comments. Mr. Graham simply made some comments about how long their stints were, that they served at the pleasure of the President (to which they all agreed) and did not agree with “besmearching their records.” At the end he claimed that their files were out of order with the Department of Justice. He also told us that he believed in cycling as many people through the experience of being a US Attorney as possible.
This led to the introduction of S. 214 Preserving United States Attorney Independence Act of 2007 which would repeal §502 of Pub. L. 109-177 and reinstate the old rules. The bill passed out of committee and was placed on the Senate calendar on 12 February. Its movement has been impeded by Mr. Kyl who is requesting that amendments be allowed.
Mr. Kyl fears the subsection removed by the Patriot Act because he believes that it violates the separation of powers by allowing the court to “appoint” someone to fill the vacancy permanently. United States v. Santana, 83 F.Supp. 2d 224 (1999 DC Puerto Rico) holds that as long as the President retains the right to replace the judicially selected interim with a nominee of his choosing that 28 U.S.C. §546(d) does not violate the separation of powers doctrine. The President always retains the authority to nominate someone under §541 to fill the vacancy because this section gives him the power to remove any U.S. Attorney.
The issue with taking the provision out is that either the interim appointment becomes “permanent” or the vacancy may not be filled and create backlogs for the court and unconscionable delays in the administration of justice.
The provision amends 28 U.S.C. §546 and states the following:
(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under §541 of this title.
There is no time limit within which the President must submit the nomination to the Senate for the “advice and consent” required by the Constitution and § 541 for a permanent appointment. The repealed language of §546 set the time limit for an interim appointment at 120 days so there would not be a US Attorney that went without confirmation by the Senate. The USA Patriot Improvement and Reauthorization Act was signed in to law and became Pub. L. 109-177 on March 9, 2006 with §502 which grants the power to appoint “permanent” interim US Attorneys.
The provision amends 28 U.S.C. §546 and states the following:
(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under §541 of this title.
There is no time limit within which the President must submit the nomination to the Senate for the “advice and consent” required by the Constitution and § 541 for a permanent appointment. The repealed language of §546 set the time limit for an interim appointment at 120 days so there would not be a US Attorney that went without confirmation by the Senate.
This fuels the current controversy surrounding the resignation of 7 former U.S. Attorney’s four who appeared before the U.S. Senate Judiciary Committee yesterday to testify about their cases. This was the second in a series of hearings looking into the employment practices of the Administration.
Official Photo of former U.S. Attorney David Iglesias
Source: Timeless Images Photography
The most obvious of the cases is that of David Iglesias who received phone calls from lawmakers about a public corruption case involving Democrats shortly before the election last November. Sen. Pete Domenici and Rep. Heather Wilson both admitted making the calls but denied applying pressure to Mr. Iglesias, who claims that Mr. Domenici asked specifically about timetables and speeding up indictments. This behavior is in violation of the ethics rules of the Senate and House as well as possibly the U.S. Code.
However, Mr. Graham explained while Mr.. Sessions defended the Administration’s actions. Mr. Sessions was more probing in his questions and comments. Mr. Graham simply made some comments about how long their stints were, that they served at the pleasure of the President (to which they all agreed) and did not agree with “besmearching their records.” At the end he claimed that their files were out of order with the Department of Justice. He also told us that he believed in cycling as many people through the experience of being a US Attorney as possible.
This led to the introduction of S. 214 Preserving United States Attorney Independence Act of 2007 which would repeal §502 of Pub. L. 109-177 and reinstate the old rules. The bill passed out of committee and was placed on the Senate calendar on 12 February. Its movement has been impeded by Mr. Kyl who is requesting that amendments be allowed.
Mr. Kyl fears the subsection removed by the Patriot Act because he believes that it violates the separation of powers by allowing the court to “appoint” someone to fill the vacancy permanently. United States v. Santana, 83 F.Supp. 2d 224 (1999 DC Puerto Rico) holds that as long as the President retains the right to replace the judicially selected interim with a nominee of his choosing that 28 U.S.C. §546(d) does not violate the separation of powers doctrine. The President always retains the authority to nominate someone under §541 to fill the vacancy because this section gives him the power to remove any U.S. Attorney.
The issue with taking the provision out is that either the interim appointment becomes “permanent” or the vacancy may not be filled and create backlogs for the court and unconscionable delays in the administration of justice.
Thursday, August 10, 2006
A Question of Values
America was born of a noble idea of some very intelligent men. Americans are born into a tradition and taught a set of values that they celebrate on Independence Day. Our values are liberty, justice, and rule of law. We praise these values, but lately we seem to have forgotten them in the fight with the terrorists. Terrorists work to change values by violence rather than peaceful means. We work to change things by peaceful means and only use the military when necessary. We are told that this is a different kind of war with new rules and therefore our paradigm must shift.
How does the fight effect our values? What is the role of fear in this change? How do we maintian our traditional values while fighting an enemy that knows no bounds? These questions and many others are difficult to answer. However, we would do best if we were to remeber the words of Benjamin Franklin: Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.
Since the above quote refers to liberty, I sahll start there. Our essential liberties were hard won by James Madison in the crafting of a Bill of Rights. The first ten amendments to the Constituion are known as the Bill of Rights. Since its framing some of these essential rights have been determined to cover women and minorities. However, the essential liberty we seem to have little value for today is framed in the Fourth Amendment which provides for the security of our persons, houses, papers, and effects, from unreasonable search and seizure. This essential liberty was confirmed to include the privacy of phone calls in 1967 when the U.S. Supreme Court decided Katz v United States. Since this landmark decision laws have extended the protected zone to include other electronic communications, through the Electronic Communications Privacy Act. Laws such as Title III and FISA direct police and intelligence agencies to get a warrant in order toinvade the privacy of someone’s electronic communications.
How does the fight effect our values? What is the role of fear in this change? How do we maintian our traditional values while fighting an enemy that knows no bounds? These questions and many others are difficult to answer. However, we would do best if we were to remeber the words of Benjamin Franklin: Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.
Since the above quote refers to liberty, I sahll start there. Our essential liberties were hard won by James Madison in the crafting of a Bill of Rights. The first ten amendments to the Constituion are known as the Bill of Rights. Since its framing some of these essential rights have been determined to cover women and minorities. However, the essential liberty we seem to have little value for today is framed in the Fourth Amendment which provides for the security of our persons, houses, papers, and effects, from unreasonable search and seizure. This essential liberty was confirmed to include the privacy of phone calls in 1967 when the U.S. Supreme Court decided Katz v United States. Since this landmark decision laws have extended the protected zone to include other electronic communications, through the Electronic Communications Privacy Act. Laws such as Title III and FISA direct police and intelligence agencies to get a warrant in order toinvade the privacy of someone’s electronic communications.
Wednesday, August 9, 2006
Change the War Crimes Act, I Think Not
The administration has insisted that they were not breaking the law or ignoring international standards in its treatment of detainees, however, a draft revision of the War Crimes Act may shed light into their actual desire to change a law in order to protect against prosecution for lawbreaking that has already occurred.Today’s Washington Post reports on the administration’s proposed amendments to the War Crimes Act, which specify the categories of illegal activities that are absolutely banned while leaving flexibility so great that CIA officials and others operating under orders of the President or a political appointee immunity from prosecution as well as giving the appointee immunity from prosecution. However, the military officials, who are immune under the War Crimes Act, would be prosecutable for the Conduct under the Uniform Code of Military Justice. Our military personnel can be charged with an offense under the general article if their offense is not covered by a specified article.
This attempt by the administration to propose very narrow definitions of war crimes comes on the heels of a request for Congress to define war crimes reproted in the New York Times. The administration did not give them a fair chance to do their work. This proposal will preoccupy and cotrol debate because it is the first and gives staunch supports of the President like John Cornyn and Jeff Sessions suggestions to work with in handling the most difficult issue of our time.
According to my interpretations of the reports these amendments would effectively make the McCain provisions of the Detainee Treatment Act (DTA) ineffectual. The McCain provision was approved by the Senate 90-9 and also by an overwhelming house majority.
This attempt by the administration to propose very narrow definitions of war crimes comes on the heels of a request for Congress to define war crimes reproted in the New York Times. The administration did not give them a fair chance to do their work. This proposal will preoccupy and cotrol debate because it is the first and gives staunch supports of the President like John Cornyn and Jeff Sessions suggestions to work with in handling the most difficult issue of our time.
According to my interpretations of the reports these amendments would effectively make the McCain provisions of the Detainee Treatment Act (DTA) ineffectual. The McCain provision was approved by the Senate 90-9 and also by an overwhelming house majority.
Wednesday, July 5, 2006
The Graham Principle: American Values and the Rule of Law
We have been fighting a battle with terrorists since 9/11/2001 and Sen. Graham has been consistent in his crusade to have us fight the war according to the principles that have made this country great: justice and the rule of law. These values are the most important, especially in a time of war. Lindsey is not only a Senator leading the charge for legal military tribunals but is apparently fighting for the interests of the Judge Advocate General Corps and the military that has allowed him to earn his degrees and support his sister so she could get her college degree.
He was indignant after the Abu Ghraib scandal broke in the media. He was not about to let us look like our enemy because we would lose the moral high-ground. He even told Attorney General Alberto Gonzales during a hearing that the way we fight the war on terror is about us and not them. He supported the Detainee Treatment Act which banned “cruel, inhuman, and degrading treatment” of detainees. He also said that we needed to follow the rule of law in treatment of the terror suspects.
He was indignant after the Abu Ghraib scandal broke in the media. He was not about to let us look like our enemy because we would lose the moral high-ground. He even told Attorney General Alberto Gonzales during a hearing that the way we fight the war on terror is about us and not them. He supported the Detainee Treatment Act which banned “cruel, inhuman, and degrading treatment” of detainees. He also said that we needed to follow the rule of law in treatment of the terror suspects.
Thursday, June 15, 2006
Friend of Graham and Good Policy
Paul at PowerLine is as disappointed in Sen. Graham’s lack of a response to the issue of weather he is blocking the Haynes nomination as he is in the senator's recent letter to conservative groups. The partisanship of the retired military officer does not matter as long as his concerns are valid. I am sure that Paul would be signing a different turn if this military officer were a partisan Republican. The other man mentioned, Mr. Guter is not incoherent just because he disagrees with a policy. If Mr. Haynes could not break from his ’superiors’ as General Counsel of DoD than it is right to question his independence as a judge when dealing with the cases that are sure to come before the court in the interceding years.
Sen. Graham is relying on the testimony of former officers that either worked with Haynes or in the environment that Haynes created when he sold out his DoD position to go along with the Justice Department position. It is unfair to say that Sen. Graham is ignoring pro-Haynes viewpoints of the officer cited. If Maj. Gen. Michael Marchand would go in and talk to him or write a letter to him than He would consider his viewpoint as well.
He is talking about the JAG memos, which took him a year and one-half to get and they were classified for some unknown reason. He refers to these memos because they represented DoD policy and the concerns about the effect on the service men and women were valid. If the advice was followed than why couldn’t the Senator have them sooner? If they weren’t doing aything wrong why classify the opinion of the JAGs when the memos between Bybee, Haynes, Gonzales, and the other civilian lawyers were made public? Why did Secretary Rumsfeld later have to decertify some of the methods and why are we still dealing with this if he listened to their advice and the document addressed their concerns?
The argument that Sen. Graham did not consider the views of Maj. Gen. Roning or supporters of Haynes is wrong because just the fact that he called someone that positively assessed Haynes is telling about his willingness to consider views contrary to his own and the critics.
The letter does not directly address the issue of his role in stopping the Haynes nomination, but conservatives have drawn the conclusion from the wording that he is the impediment. This is no surprise to me because he has said that there was one nominee that he would vote against and I think Haynes is that nominee. If the Haynes nomination goes through committee and to the floor there will be a filibuster and I would rather see Sen. Graham do everything in his power to preserve the civility and working order of the Senate.
Sen. Graham is relying on the testimony of former officers that either worked with Haynes or in the environment that Haynes created when he sold out his DoD position to go along with the Justice Department position. It is unfair to say that Sen. Graham is ignoring pro-Haynes viewpoints of the officer cited. If Maj. Gen. Michael Marchand would go in and talk to him or write a letter to him than He would consider his viewpoint as well.
He is talking about the JAG memos, which took him a year and one-half to get and they were classified for some unknown reason. He refers to these memos because they represented DoD policy and the concerns about the effect on the service men and women were valid. If the advice was followed than why couldn’t the Senator have them sooner? If they weren’t doing aything wrong why classify the opinion of the JAGs when the memos between Bybee, Haynes, Gonzales, and the other civilian lawyers were made public? Why did Secretary Rumsfeld later have to decertify some of the methods and why are we still dealing with this if he listened to their advice and the document addressed their concerns?
The argument that Sen. Graham did not consider the views of Maj. Gen. Roning or supporters of Haynes is wrong because just the fact that he called someone that positively assessed Haynes is telling about his willingness to consider views contrary to his own and the critics.
The letter does not directly address the issue of his role in stopping the Haynes nomination, but conservatives have drawn the conclusion from the wording that he is the impediment. This is no surprise to me because he has said that there was one nominee that he would vote against and I think Haynes is that nominee. If the Haynes nomination goes through committee and to the floor there will be a filibuster and I would rather see Sen. Graham do everything in his power to preserve the civility and working order of the Senate.
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