An Open Letter to President Obama : The Problem With Accepting Syrian Refugees.

Dear Mr. President,

Don't you EVER call me bigoted or frightened or xenophobic because I will not support your half baked plan to admit Syrian refugees into America. Its not b/c of them that I object, its because of YOU!

You have proven yourself to either be the dumbest President since Harding, or the biggest liar since Clinton. You may be both, but I fear more the latter than the former.

You see, in order to engender trust in your work and that of those that work in your administration, you have to be RESPONSIBLE. You are not.  You never take responsibility. Any problem you encounter is always someone else's fault. You claim to never know anything when there is a MAJOR screwup in your administration. You find out when you read it in the newspapers. This does not engender trust.

You also say things you cannot prove or back up! You see Mr. President, ISIS was not the JV team; you do not have Isis contained; Your former Secretary of State knew a lot more than she allegedly told you, and she used private e-mails which she later destroyed without your approval, and  your staff (ie Ms. Jarrett) planned lies about most if not all of it.
By the way When the President of the United States of America draws a "line in the sand" and then has to let the Europeans pull your foot out of your mouth, that does not engender trust in you or your word.

You promised transparency, but yours has been the least transparent administration since Nixon. You promised to not spy on us, LOL! Nixon is in the clouds saying "Whoa, this guy is good". Hell even J Edgar Hoover would be impressed. You spied on our allies and lied to them about it. Your IRS targeted your "enemies" but you take NO responsibility for their actions. Instead your administration has covered its wrong doing up. Cover ups do not engender trust.

Personally,  I don't think you or anyone working for you, could spot an Islamic or for that matter ANY Terrorist if he was standing in front of them with a lit bomb screaming "JIIIIHADDDDD!" and wearing an Allahu Akbar!!! Pin. Hence I do not think your administration can be trusted to properly vet incoming refugees to determine which of them may be the one to blow something up in the USA.

No Mr. President, I am neither a bigot nor a xenophobe, I am just an ordinary American citizen who has lost faith in his government's, and more importantly his President's ability to preserve his freedom OR his safety. That is why so many Americans are against taking in Syrian Refugees right now. If you would step out of your Rose Garden for a few minutes and talk to the part of your constituency that you do not like, you might learn a thing or two. Who knows, you might even apologize correctly for your past behavior and that of your staff and start to get back the trust of the public that you had three short years ago but squandered since.

Yours truly
Anthony Colleluori

AKA That Lawyer Dude.

Mischaracterizing The Checks and Balances In Our Constitutions Framework: Justice Scalia's Dissent in Arizona v. USA

As promised I have had a chance to read, reread and digest the Supreme Court ruling on Arizona v. United States where a majority of the Supreme Court ruled Arizona's controversial Immigration law a\k\a SB1070 as unconstitutional.

You can read the original decision or get the cliff notes here

What most caught my attention however was not the majority decision which I think is about as correct an interpretation as one could give here, but the very political dissent by Justice Scalia.

Now many of you know how much I am a fan of Antonin Scalia. We might not be from the same political theory family (Original/intentionalist v. Original/textualist see a further discussion here but we are certainly kissin cousins.

With that said, I also have to say that while I understand his frustration, (it has to be hard being so close to having a majority on every issue and preempting the other two branches of government with a ruling) He has allowed his frustration to overcome his understanding of the checks and balances within the Constitution.

Look, in the original Constitution, The Founders contemplated a bunch of things that could be done for one branch to veto the other two branches. The Congress passes a law, the President vetoes it. Congress can override the veto, if they do, the Supreme Court might decide that the law is Constitutional or it is not Constitutional. Ok so we have a law than the Congress wants the President doesn't and the SCOTUS says the law passes Constitution muster. Now what options does the Constitution leave the President? Well enforcement of law is left to.... THE EXECUTIVE BRANCH (ie the President). He can choose to enforce that law or not or do it the way he sees fit. Now Congress has another option. It can impeach the President for NOT Enforcing the law, The Supreme Court Chief Justice presides over a trial in the Senate and if he loses the Senate vote, he is gone.

Now Scalia's problem here seems to be, he really doesn't like the way the President has chosen to act on the failure of Congress to pass the Dream Act (lets remember what Scalia is angry about is the President's decision (through the Dept. Of Homeland Security) not to deport students who came to the United States as children because their parents didn't abandon them when they came to the US to find a better life) by not forcing these children to leave the only country they really know so that they can go back to a culture where they very well know no one and may not even know the language.

(In fact opponents of immigration reform like Federation of Americans for Immigration Reform (a well known hate group with ties to the KKK and other Xenophobic entities)want to send children BORN IN AMERICA to undocumented aliens out of their (our)country)

In his frustration, he lashes out politically at the President in his dissent stating:

...U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non enforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation’s immigration laws?

In fact the Constitution does not allow the states to enforce Federal laws that the President decides he will not enforce. If it did, it would give every state Governor and legislature a separate check on the President and on Congress as well.
Would Scalia say the same thing if the states were disagreeing with the court? In fact after Brown v. Board of Education, many states continued to say they didn't have to follow Supreme Court "law" and had the Presidents at that time decided not to send Marshals and troops to enforce the decision there would have been nothing the court could have done.

Scalia's comments are thus a political attack against POTUS's decision to get some of the rights the Dream act would have granted. It isn't the court's place to rule politically. I have no problem with much of his dissent (though I would not have joined in it as I think it twists to a great degree the law on federal preemption in Immigration enforcement) but I feel he has allowed his dissents to fall into the fanaticism that encompasses most of today's political debate. By suggesting the President was not within his right to set Executive priorities and that states can act on their own, is just not the law, it is not forwarding understanding the checks and balances of our Constitution and frankly it is beneath Justice Scalia's ability as a SCOTUS Justice.

THIS JUST IN:US SUPREME COURT OVERTURNS MOST OF ARIZONA'S ANTI IMMIGRATION LAW!!

I hope to have more details on this later after digesting the 76 page decision but it seems SCOTUS has knocked out everything in the law that Civil Rights advocates attacked except for the stop and check of status.

Immigrants do not have to "carry registation papers"; the State Police cannot arrest allegedly illegal aliens without a warrant and they cannot get such a warrant from the state courts;and overturning the law which allowed the state to charge a misdemeanor against an undocumented alien from holding a job.

Even the "stop and check" portion of the law is in danger as the court invited civil rights advocates to bring other attacks against the law.

The majority has upheld federal exclusivity in setting and prosecuting Immigration policy. Interestingly both Kennedy and Chief Judge Roberts were in the majority.

More later I hope.
Hattip: The New York Times on Line

Mr. Romney, Your Silence is Deafening: Where is the Real Republican Immigration Plan

Yesterday I was pretty critical of President Obama about what I consider to be a basically valueless change in Administrations policy on Immigration. Today I want to make it clear I am just as unhappy with the Republican Presidential Candidate Mitt Romney. You see, Obama hasn't really kept his campaign promises to pass comprehensive Immigration reform, however Mr. Romney has yet to even make a promise with any proposal. I am actually more inclined to be angry at Republicans for not trying to come to the table with a plan than at Obama who has at least put forth a plan that Republicans promise to filibuster. Look it is easy to say NO! It is hard to say, "this is what we need and we know what you are looking for and here is our proposal."

Five times yesterday, Bob Schieffer of CBS News asked Romney on "Face the Nation" if he would undo the Napalitano Order to not seek deportation of "Dream actors" for now. Five times he failed to say what he'd do. Thing is, I think Mitt doesn't really dislike the Presidents plan, he just can't say it without alienating every xenophobic wingnut who is supporting him on the right. Here is the thing, George W. Bush had a great plan, but the wingnuts took over and ruined any chance the Republicans had of passing the plan, fixing the problem and winning the day. That is the problem with "Pure" politics. You cannot get anything done with someone who is "my way or the highway."

The Majority of Americans favor a road to citizenship for people who are already here. The majority also seeks a plan that would make it counter productive for someone to come over here and be illegal. The people who vote in the cock-eyed primaries, aren't those people. Here is the thing, Bush was willing to fight his party, but he really couldn't fathom a way to do it. As a result he lost the Hispanic vote for McCain. McCain (who also shot himself in the foot by abandoning everything he ever stood for and with his Sarah Palin Fiasco)paid for it dearly. Romney has caved on EVERY THING for which he ever stood. Now no one, not the conservatives, not the libertarians, and not the American public will ever trust him. If I were an anti-immigration Republican, I wouldn't vote for this guy, I don't know what he will ultimately do. As a Pro-immigration Libertarian, I wouldn't vote for Romney because he is a living disaster for America and especially on this issue, even if I believe a President Romeny will flip (when the pollsters tell him to.)

I will probably cast a vote for Gary Johnson, who is better than either Romney or Obama. Then again, I may be so fed up by November I may not vote at all... (don't get excited, I will probably vote, I like doing it too much to give it up.)

NEWSFLASH: Osama Bin Laden Killed by American Operatives in Pakistan: Other News of the Weekend.

Tonight the PRESIDENT of the UNITED STATES OF AMERICA (POTUS) announced that the CIA in co-ordination with the Pakistani Government located and killed OSAMA BIN LADEN Public Enemy number one (here and abroad.) That news is important and it is welcomed. I cannot say I am disappointed in anything other than the time it took to find him. May he never rest a day in eternity. I hope those 76 Virgin(ian)s he thought he would get are kicking the crap out of him right now in Hell. Congratulations to President Obama, Leon Panetta and the countless agents of the FBI CIA and of course of armed forces who have worked in hopes of this announcement, for bringing this terrorist to justice. No, it doesn't bring back our loved ones and it will never erase the misery of 9/11 or the days that followed it, but it does provide a sense of closure.

As for other News I found interesting, all of it pales in face of the news above. Just in case however you want to know what I thought was otherwise interesting, here are a couple of articles I wanted to write about:



I was going to use the blog tonight to talk about the futility of charging a nine year old child with murder for shaking a baby and how we need to separate the emotion of the parents losing an infant from the need to avenge a death with the "death" of another child when that child does something horrible.

I was also going to talk about the need for an "Expungement" Statute in NY given the fact that people arrested and convicted for even minor crimes can not get jobs anymore because of the Internet's ability to derail their job search with convictions. I was going to point to an article in the NY Times (semi subscription) which points out that people who have paid their debt to society long ago still cannot get work because of small or substantial indiscretion decades before.

Happy Law Day!!

May 1st ought to be a National Holiday. It is the day that America "celebrates" Law Day. Now some of you are saying "Tony what is 'Law Day'?" Well here is an excerpt from the Presidential Proclamation:

At the core of our Nation's values is our faith in the ideals of equality and justice under law. It is a belief embedded in our most cherished documents, and honored by President Eisenhower when he established Law Day in 1958 as "a day of national dedication to the principles of government under law." Each Law Day, we uphold our commitment to the rule of law and celebrate its protection of the freedoms we enjoy.

This year, we pay tribute to one of America's Founders and our second President, John Adams. As a young attorney in colonial Massachusetts, John Adams was asked to represent a British officer and eight British soldiers charged with firing into a crowd and killing five men in the Boston Massacre. In the face of mass public outcry and at great personal risk, he accepted the case and showed the world that America is a nation of laws and that a fair trial is the right of all people.

President Adams' legacy of dedication to fairness and the rights of the accused has been carried forward by members of the legal profession for more than two centuries. It is championed by those who represent the accused and exemplified by women and men who are devoted to securing equal rights for all, both in America and around the world.

I am working today on a trial that will begin on May 11, 2011. I am working on it as a Assigned Panel Lawyer. It is the way I participate in a tradition of a government by Law and not by tyranny. I won't earn much, I don't want to. I want to win this case just like I want to win everyone of the ones for which I am highly paid. I want this client to receive the fair trial to which he is entitled with a qualified lawyer representing his rights. Hence I will leave this post and return to work. It is in fact the best way I can think of to honor President John Adams and those other men of Law who helped "give birth" to our Nation.
Happy Law Day to you all.

It's D-Day and That Lawyer Dude Returns... Again.

I may revive this blog more often than Pop Tart Britney Spears revives her career, but I am back. It has been a while. I know that most of you who stop by here come to see me rant on something or just to see if I am alive (thanks for those of you who stop by to see if I am alive). I am. I am also ready to take on a few people places and things.

Where to start?

Hmmm. Let's see it is June 6th, a foreign nut job is trying to rub out the free world, our troops are dying oversees, Our Democrat president is trying to bring us out of a depression by spending more and more money, and the NY Yankees are over .500 It must be the year.... 1944. That's right it is D-day. Imagine how history repeats itself?

To our Veterans of that war and that day, I salute you. I also thank you for a service well done.

To our Veterans of today, I salute you as well. I celebrate your return from war, I pray for those of you who are still there, and I thank you for agreeing to take on the task of keeping us free.

I also do not want to let today go by without remembering, Robert F. Kennedy who was killed by an assasins bullets on June 5th 1968 some 41 years ago. He was a man who whether I would agree with his politics, asked the question "Why can we not be better than we are?"
It is an important question to ask of ourselves everyday.

Tomorrow's post: The Case of the Chess Club Urinalysis and other stories about governments over-reaching.

The Start of a New World, The Week The Dream Comes True : Martin Luther King Jr. and Barack Hussein Obama

I have so little to add to all that is being said on the air, in the main stream media and in all the blogs. This is the start of a new world. A world that I am sure many in my lifetime feared, and many more doubted. A world, where finally the promise that any man woman or child can be President of the United States is fulfilled.

From the steps of the Lincoln Memorial, possibly the most revered land in the nation (other than a National Cemetery) Martin Luther King Jr. stood up to the powers that would liked never to see this week come and said:

"And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident, that all men are created equal."
I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of "interposition" and "nullification" -- one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; "and the glory of the Lord shall be revealed and all flesh shall see it together."
This is our hope, and this is the faith that I go back to the South with.
With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith, we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith, we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
And this will be the day -- this will be the day when all of God's children will be able to sing with new meaning:

My country 'tis of thee, sweet land of liberty, of thee I sing.
Land where my fathers died, land of the Pilgrim's pride,
From every mountainside, let freedom ring!"

Tuesday is another huge step in achieving the MLK Dream. But it is not just his dream that is fulfilled this week. With the Inauguration of Barack Obama, we also fulfill the dreams of Ganhdi, and Lincoln, and Jesus Christ. King said in his speech:

"In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force."

On Tuesday, we have an opportunity to show the world, that the concepts of peaceful protest, advocacy, education, and persistence can change the way the world works. War and killing doesn't have to be the way. In fact, war and killing usually just leads to more war and killing. Peaceful respectful disagreement will bring about permanent change. Discipline and Dignity... If that isn't a good description of our President-elect, nothing is. I don't know what he will do, or if it will work, or even if I will agree with him, but I already see he is a man, who exudes dignity and discipline.

There is a different feel in Washington DC. It is one of hope and renewal. There is a return of class to the city. People even speak of trust. I haven't heard the word trust in the city since 1969.

Obama is reaching out to the Republicans. He is seeking to work with the men in the middle. He may be saving the Republican party from itself by doing so. Brave Republicans like McCain and Graham understand that working in a genial environment is the only way to accomplish anything. Failure to do so will reign down anger from the people on the main streets of every city and town in the country. We cannot have 4 more years of nothing being accomplished in Washington DC.

Of course, such bi-partisanship will bring about rage from the neo-con right (or are they really left?) because, they will claim they cannot take pot shots at the President and the Democratic leadership if the moderate Republicans give them cover. Too bad. Rush and the idiotic blond bimbo who wishes she were he, will have to just shoot at each other for a change. They have been shooting the Republicans in the foot long enough. Liberals of the far out persuasion will have the same difficulties. If they want to accomplish anything in Washington DC without making their re-elections impossible, they will have to come to the middle with their social agenda, and maybe their economic agenda as well.

On the other hand, we all could go to a tax program allowing Americans to keep 90% of what they earn. I bet that stimulates the economy right away.

Finally, maybe the dreams of the man we honor on Monday, become fulfilled with the Inauguration he made possible of the man we entrust with our nation's well being on Tuesday. With great challenge, comes great opportunity. But with great opportunity, comes great responsibility not to squander that opportunity. The last eight years have been squandered opportunity. As a nation we have tired of that waste.

It will be an historic week. I will pray, it is an historic Presidency.Congratulations Dr. King, and welcome Mr. Obama, Mr. President. Welcome, and good luck.

Revisionist History Lesson: Mauro on the Nixon Library Releases Tape of Nixon-Burger Phone Call

When I was in College, I had a Professor named Parkman. He was a phenomenal teacher. Right out of central casting. He could just as well have been at the Louisiana Purchase as written about it. He had to be 115 years old (or so it seemed to me as an 18 year old Freshman).

Anyway Professor Parkman wasn't one to get excited about much. The one thing he was excited about however were the "Revisionists". A "Revisionist" was someone who looked at history but through the light of how he wanted it to be and not report it in the light it was created. (check out Wikipedia's links for a more complete look at "revisionism" both positive and negative)

I can hear Parkman "railing" as I read this post on the release of a taped conversation between President Richard Nixon and then SCOTUS Chief Justice Warren Burger (who Nixon appointed to the high court as CJ.) It seems that Tony Mauro could not help but to express that Nixon and Burger were engaged in a conversation that would be "frowned upon". They were discussing the Miller v. California 413 U.S. 15 (1973) case which set up the "community standards test" for obscenity.

In fact, not until after Watergate would it be frowned upon. At the time of the phone call, both men led separate branches of our government. It was not even "frowned" upon for POTUS prior to President Ford to speak to SCOTUS Justices, especially the Chief Judge, for opinions about how certain initiatives would fair if brought before the court.

Listen to the conversation, it doesn't seek to nail Burger down on the issue although Burger himself opines that he is "coming down hard on it". It is a general conversation about the work that the judicial branch is involved in. Nixon being a lawyer, and a bit of a gossip, wanted to talk shop with a colleague. He had worked with Burger during the campaign in 1952 and was there when he was appointed by President Eisenhower to the bench. Nixon elevated him to the Chief Judge's spot. Is it hard to believe that they had a professional friendship? Nixon had argued a first Amendment case in 1966 before the SCOTUS. It was an area of law both men felt was important from an academic as well as a political point.

After Watergate, the court took on a more important role in everyday politics, hitting what I hope was its zenith in Bush v. Gore. Until then the Court generally stayed above the political fray though individual justices were always political beings. I agree that for better or worse, this type of conversation would be frowned upon. I am of the opinion it is for the worse. Nevertheless, to place 21st century mores on a 20th century conversation and suggest something nefarious where such conversation was de rigeur strikes me as not only unfair, but dare I say..."Revisionist".

By the way I think it is interesting that Ron Howard's Frost Nixon(link is for the trailer) is coming out this month. I have no idea what to expect, but I cannot wait to see it.

Hattip: Law.Com

PS Thanks to the Nixon Library for a link to the tape and to Findlaw for the Miller case, and LII for the link to Bush v. Gore.

What Would Happen If There Were a Disaster At the Inauguration?: A Potential Flaw in the Rules of Succession

I often worry about disasters. I am not sure why. I think I am an optimist. On the other hand, Lawyers are planners and one of the things Mrs. Lawyer Dude always compliments me on is that I usually see things happening down the road and I always have a contingency plan. Hence I have been thinking a lot about Inauguration day. I mean it is going to be the most historical one in the last century. It is also going to stir up a lot of idiot people who have an ax to grind, or think they do. Further, we always have those cave dwelling morons from Al Qaeda , looking for a reason to blow our big party. It occurred to me that everybody who is anybody is going to want to (and probably can) be there, on the podium. I mean we will see the Pres. The Pres-elect, VP and VP elect, Chief Justice and presumably the entire Supreme Court, the Speaker of the House and the Minority Leader as well as the Senate Majority and Minority leaders and a host of Senators and Congressmen and Cabinet members. So, who will be watching the store and what happens if the worst happens and all these people are unable to serve for a while.

OK Before you all get on me for being a damp cloth, the guys and gals over at the Wall Street Journal "Law Blog"have been wondering about this stuff too.Their post "President Condoleezza Rice" explains how the title could come true. They however are smarter than me, cause they have some potential answers. The real answer seems to be however, that if a Bush Cabinet Member survives, and President-Elect Obama is not inaugurated, the Bushie is President for the next four years. That would thwart the Will of the People it seems. It is a good thing lawyer types like me worry about things like this.

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Kennedy Inauguration Picture above provided by Wikipedia under a Common License.

Bush and Paulson Impose More Rules on Internet Gaming: They Just Can't Help Themselves Deep Down Inside, They Just Aren't Really Conservatives

Gambling has gotten the Republican Party in trouble before. After all the Jack Abramoff Scandal was all about the Republican lobbyist paying off Republican Congressmen to protect his client's (Indian Casinos) interest. That included curbing Internet gambling.

In the waining moments of the Republican congressional majority the Party bosses and the President passed a law ordering the Treasury to develop rules to ban credit card companies from permitting Americans to place bets on Internet gaming sites. This of course angered Poker players. It is also just not what the majority of Americans want. OTOH it is very popular among Christian Right leaders and the so called Republican base.

Well now that Bush is about to finally go off to that great Presidential Library in the west... Paulson (Treasury Secretary) has promulgated Rules that effectively ban any Internet gambling (except the free kind which is fine for me but not very satisfying for most poker players)from the US.

I haven't the time to rail against the Bush Administration right now, but read about the matter here.

I never thought I would say these words. Rep. Barney Frank is right. (Was that thunder I just heard?) Lord help us when we have to look to the Democrats to enforce our liberties...

A Sunday Jog Around the Blogosphere

Wow what a busy week. 8 posts in one week!! Pretty good especially for me. I doubt I will be quite so prolific this week as I am going to be back on a suppression hearing on Tuesday and maybe Wednesday in People v. Ronald "Shorty" Rodriguez, before the Hon. Meryl Berkowitz in Nassau County Court. Later in the week I will be in NYC for the 50th Anniversary of the NACDL. I may do a few blogs from there. I am excited because I am serving on the Nomination committee. Fellow Law Blogger and President-elect John Wesley Hall asked me to serve and I am very honored.

So as it is Sunday, I am going to again jog around the blogoshere with you. Here are a few things that caught my eye this week that I didn't get to write more about but you may want to look into yourself:

1. That Exotic Darlin' of the Neo-Con set Michelle Malkin asks the blog question, are US banks Knowingly Laundering Drug Money for Mexican Drug Cartels?? Michelle's take is that illegals, are here, sending money there (Mexico) through non-banks called "casas di cambio." American banks wanting some of the action offer these CdiC's a place to put large amounts of money and will look the other way if some of the money comes from the drug trade.

Michelle's neo-con answer is of course to prosecute the banks the illegals and the democrats. MY answer is better. Legalize the Drugs and tax same, put the money to use to help people beat their addictions, and open the borders correctly with a sane immigration policy that will not cripple US businesses.

Hmmm... Deport workers, cripple our economy, jail Americans for trying to make a living, jail more people for feeding their addictions, ruin foreign governments by making Criminal's rich and cost the American Taxpayer gazillion dollars for a drug war we could end with the stroke of a pen versus A sane immigration policy and drug policy... Ok she is sexy (especially compared to that shrieking idiot of the rightamortis, Ann Coulter ) but her views are silly.

2. I will never figure out the Federal Prosecutor's fascination with rebuttal witnesses. I guess they feel that it gives them a chance at primacy and finality two forensic speaking techniques. On the other hand, watching a case go in over seven (7) weeks and then blowing up on rebuttal just makes me question two things: to they think the defense isn't aware of their games and can not counter them? and Why do they think the jury needs to hear the same stuff over and over again? Anyway, the Pellicano case in L.A. Federal court is about to go to a mistrial... seems that the rebuttal witness they called to contradict the defendant's testimony on a minor issue, committed perjury and will have to take the 5th amendment on Monday. She was to be the final witness. Shame on the US Attorney's office in L.A. for doing a shabby job of investigating their own witness. Talkleft has some coverage here.

3. Pittsburgh Pa. has become an adoptive second home for us. We go there for some of my wife's medical treatments. The City is made up of many really nice people. Then of course there is their US Attorney, but she is a story for another post.

For now, here is a story about a guy who was arrested for complaining too much in a bad tone... A little subjective no?? Anyway he was convicted by a jury and it is on appeal... I can understand how one might want to be respected for working in public service. On the other hand I can also see how one might get fed up with the failure of certain public servants to do their jobs. What I cannot see is someone being convicted for complaining to a public servant about the job they do. Taking complaints is in the job description. As long as it is not abusive language tone shouldn't matter. (I am not sure abusive language should matter either but that too is another post.)

Hattip: to Radley Balko at The Agitator

In a related post over at the CrimProf Blog there is a story about a guy who got 15 years for sending governmental officials threatening letters.
4. "Romeo, Romeo, Where fore art thou Romeo..." Well both Romeo and Juliet are over at the Volokh Conspiracy this week where Professor Eugene Volokh, the head conspirator looks at the reason's behind Romeo and Juliet sex laws (laws that outlaw sex between adults and minors of a certain age but allows the sex if the lovers are born within a certain amount of time of each other. On first blush, it seems that Prof. Volokh is in favor of pedophiles, however when you look at his questions he does seem to put those laws under a light of logic and they do not come out all that well.

5. Some Good and Bad News about the Fourth Amendment in the news this week.
The blogosphere is abuzz with news out of California about the Ninth Circuit agreeing that laptops can be searched at screening at airport screening stations.

Meanwhile in NJ. the Supreme Court stunned prosecutors in ruling that people do have a fourth amendment protection in their ISP carriers information.

6. New and scary uses for DNA. Now it will be guilt by blood association. See this post for more information. Coming 0n the heels of Judge Weinstein's decision in , there may be a trend toward bringing Fourth Amendment law into the open and up to date with this century.

And that's our jog round the blogosphere. See you around. It should be an exciting week.
TLD.

To Err is Human, To Forgive Is Divine, To Forget Is Wrong

Bernardine Dohrn,William Ayers. I remember those names. I don't know why. Bernardine was the face and leader of the Students for a Democratic Society(SDS)splinter group the "Weather Underground." Ayers was one of it's founders.

The "Weathermen" as they were called were militant and violent. Although their bombs killed no one but themselves, that was due only to their incompetence. They were meant to kill others, many others, innocent others. They eschewed the non violent protests that were so powerful in the 1960's and turned to bombing people and things. They were despicable. That they thought their views were so right and so justified, is just the hubris of their privilege. For all their protests and their call for violent overthrow of our government they were, in fact, cowards. When their hideout was blown up (they screwed up in building a bomb and it detonated and destroyed the hideout and killed three of the members including Ayers lover Diane Oughten), they ran "underground." Many of them lived phony lives for many years. In those years they married one another and slowly found ways to fit in. They still held many of their views, but they had found different ways to express them. They were for all intents and purposes "rehabilitated," in the most loosely defined way. To my knowledge both still think their actions in being involved with trying to kill others was justified because they wanted to kill a few conservatives to save the lives of the thousands who were being killed overseas (Vietnam.)

The reason their names come up today, is that it turns out Ayers and Dorhn are neighbors, and in some instances colleagues and even advisers to Barack Obama. Hillary Clinton, has suggested that Obama's relation with these people is at the very least poor judgment. His acceptance of campaign money from them a major sin. I think it is no worse than her husband's decision to accept money from Mark Rich's wife and then granting the SOB a pardon.

I am writing here today though because the lesson of this is important to both me as an individual, and a lawyer, and my message to others as to how and what we offer to those who have created great havoc in our society and what we do with them after they are "rehabilitated."

Dorhn and Ayers are now "educators." Both are tenured Professors. Dorhn is a lawyer by training and a Professor of Law at Northwestern Univ School of Law. She has been denied the privilege of becoming an attorney at the bar. She cannot practice Law. I am told by others she has done a wonderful job in teaching others how to best protect children and families. I am also told she is no longer a threat and is really a good suburban mom who fits into the fabric of her tony community. I am glad that she has found a way to contribute, I am just as glad she is not allow to practice law, even though it probably a loss to the profession in some ways if her colleagues are to be believed.

Now I can see many of my friends shaking their heads and wondering why I am being so "vindictive" toward a rehabilitated person. I even asked that of myself. I mean after all, I am in favor of not holding someone's past against them in employment opportunities and in living situations. On the other hand, I am completely comfortable with Dorhn never getting to practice law. It appears on its face to be a hypocrisy. It is not, although until I thought it through for this blog I thought it might be.

You see, at first I thought my view was borne out by the fact that I found the Weathermen completely detestable as a youngster. (Oh yeah Barack I was only 10 when they blew themselves up. I still remember them.) As a teenager at Tufts their were still remnants of the SDS chapter at the college trying to avoid ever entering the "real" world of employment or finishing Master or Phd's on the 20 year plan.

In reality, while I find everything they did a juvenile response to political questions which explains why the "establishment" did not take their views seriously, I do not think them any worse than any other criminal. Except for Dorhn...

You see she was a lawyer already when she started the Weathermen. She wrote their manifesto. She was their face and spokesperson. She was older. In her late 20's. She was from a prominent family and had opportunities denied most criminals. Nonetheless she completely ignored the realities of what she was advocating. She forgot that the bombs her group was throwing into the homes of Judges and into the Pentagon, would kill people. The last bomb, the one that killed three of her cohorts on March 6 1969 was meant to be detonated in a crowded room filled with servicemen and their dates at an NCO Dance at Fort Dix. Many of those guys did not want to be in the service. They were draftees. Many were against the war they were going to fight in. They signed up anyway, because they understood that you didn't fight injustice by being unjust.

After Dohrn came out of hiding, she plead guilty to her crimes and then refused to testify against one of her colleagues in crime. Not being a snitch is one thing, repudiating a life is another. Finally she refused to supply a handwriting sample to the FBI for comparison. This is not in keeping with the concepts that I have of being rehabilitated. This appears to be further defiance of government.

Now I am not one to quibble with a lack of respect for authority. I think it is our responsibility to question Authority. I believe that a healthy distrust (if not disrespect) of government is not only in the American spirit, but is also a very good thing. I do agree with Ronald Reagan, one of the biggest lies ever told is "I'm from the government I'm here to help." Nevertheless, the Constitution and the law, especially in 1969 provided ample ways to do the things Dohrn and her cronies wanted to achieve without their petulance violence or avarice. That she could be an attorney and still argue that the ends justified the means bewilders me and makes me wonder about her judgment. That she is of the same opinion still makes me sure she should not be allowed to practice law now.

So how do we deal with someone who has been a felon in the past but has served their time? Well I guess young people do make errors. Sometimes those errors are horrendous. I believe that we need to mete out punishments that fit both the severity of the behavior and which provide an opportunity to correct the behavior in the future. When that has occurred I believe we do forgive. We do not ostracize, we do not shame, we do not deny rights to those that have paid their penalty. On the other hand, we do not forget that there was once a severe lack of judgment on their part. We stand watch over them and the things they do a little more. We also test to see if the rehabilitation has become full, partial or not at all apparent. We act accordingly. In the case of Bernardine Dohrn, based on what I have read and been told, her rehabilitation is partial. As long as she truly believes what she did and what she advocated was justified, I give her all of her rights, including the one to have any opinion she wants. I just wouldn't feel comfortable granting her the privilege to practice law.

Does that make sense, or does it make me a hypocrite?


Hattip: The ABA LAW JOURNAL NEWS NOW

Time to Let Her Daddy Come Home: Dying Child's Last Wish Is To See Her Imprisoned Father Before She Dies

There is a child dying in Lincoln Nebraska tonight. She is a very brave child. Her father was a very stupid man. You see, little Jayci Yaeger's father Jason, possessed and sold Crystal Meth. As a result he got a five year sentence in federal court. He would be going to a half way house in August 2008. Jayci doesn't have until August. She may not have until April. She has cancer, and she is dying. She and her family have asked that her dad be furloughed until she has passed away. This means he goes to the half way house now. He visits with her, holds her hand, helps her to be brave, walks with her into the valley of death. He does the job he should be doing. Then, after she passes to the place where angels go, he returns to jail, to figure out how he could have let drugs destroy the little time he had left with his daughter.

Unfortunately the compassionate furlough was denied by the Warden of the Federal Prison in Yankton SD. Why? We aren't provided with a reason. It appears that the Warden doesn't think the request is sufficient to warrant an extraordinary circumstance!!!! Oh yeah, FPC Yankton is a MINIMUM SECURITY PRISON. In other words, if Jason Yaeger was a real bad ass he wouldn't be there. THERE IS NO REASON IN THE WORLD NOT TO LET THIS LITTLE DYING GIRL GET HER LAST WISH.

Yeah, I guess kids die everyday. I guess not all kids have their father with them when they go. I guess that the fact that this guy didn't do anything violent and would be able to go to the hospital (or now I guess the grave site) in August doesn't constitute enough of a reason for a hard-boiled law enforcement agent like Warden J.D. Whitehead to let him out now. No this is not extraordinary. And I thought Lawyers were the only LIVING HEART DONORS!!!!

Now if you are reading this, and you have a half of a beating heart, you can help.

Here is how:

Call your Congressman and Senator. Have everyone in the Family call them and ask your friends and Neighbors to do it too. If you need numbers, look here and here.

Then put a call into the White House. Leave a message for that ole compassionate conservative George W. "I pardoned Scooter, I can give Yeager clemency" Bush to use his muscle and finally keep a promise to the rest of us who are not on Dick Cheney's staff and show us he really has some compassion. If you can, leave a message for Laura Bush too. Maybe she can get his attention.

Then, Contact the Justice (or as I like to call them the "JustUs") Department and leave a message for US Attorney General Mukasky 202-353-1555. You see, the Bureau of Prisons is a Division of the Justice Department. Mukasky could Order Whitehead to do whatever he wants. He is the man in charge. I remember him on the Bench. He ordered people to do stuff all the time. He is good at it. Let him know what you think. After all he works for you. You pay him.

Don't forget about Warden JD.Whitehead, be polite... reach him at Phone: 605-665-3262 Fax: 605-668-1113 if they haven't changed the number yet.

Now go here to sign a on line petition.

Finally, tell everyone you know to do the same thing, then go and say a prayer for little Jayci, with or without her dad, she needs those prayers.

Hattip to Doug Berman at Sentencing law and Policy blog

Updated at 2:19AM to fix a broken link for the on-line petition.

STIFLE HIM ARLENE: Senator Spector Introduces a Bill to Ban the Use of Presidential Signing Statements in Court Decisions

Does any elected official in Washington DC actually read the US Constitution???

Senator Arlene Spector (R-Pa.) has introduced a bill to ban Courts from using Presidential signing statements to reflect part of the history of any law.
You can access a copy of the proposal here. It's only 2 pages long and worth the read.


Far be it from me to not understand where the good Senator is coming from. I hate Bush's stupid self serving signing statements too. Screwing with the delicate balance of Powers set up by the US Constitution is not the way to fix it however.
The bill is of course DOA when it hits the oval office. Moreover, it should be.
This is an example of over-kill and it is Constitutionally unexceptable.

First it says that the Supreme Court (hereinafter SCOTUS) actually all courts, are banned from referencing Presidential signing statements or relying on them in determining cases. The Constitution does not require that and it is not a good precedent to allow one branch of government to officially silence another branch of government.

Secondly the bill would give Congress the right to expedite matters in the courts and to file amicus briefs through the House or Senate Counsel offices. These briefs must be accepted by the court. Nope, the cases in controversy in the courts belong to the litigants. Amicus approval should in the first instance be up to them. If they unreasonably withhold that approval, or the court thinks it would help reach a better determination if other parties weigh in, then it may ask for or accept these briefs.

Finally, Congress now also wants the right to file a clarifing statement to any case where a court wants to interpret the law. It will come up with a statement and if it passes by a majority vote it will be used to clarify what Congress meant when it passed the law. Now that should really leave laws in limbo.

The purpose of law and precedent is so people can rely on the law in making everyday decisions. Can you imagine what would happen if everytime Congress changed hands, they could "clarify" what the Congress that passed a law meant when it passed the law. Besides isn't that what the court does. Doesn't the fact that there are no judicial terms mean in part that courts is the branch with longevity? Isn't that one of the purposes of life terms?

When a court interprets a law, it can use legislative history to help interpret what Congress meant when the law passed, and it should likewise have the benefit of the President's thoughts on the matter, at the time the law was enacted. The court does not have permission to check its brain at the door however. It must use these tools as it sees fit. Litigants can site to them and they too should be able to cite the statements of Congressmen and Senators as well as Presidents. What are we saying to our courts when we tell them they can cite foreign law and cases but not the words of our own popularly elected President???

Some scholars have been bothered that when President Bush signs a Law, his signing statements are often orders to his executive branch as to how he wants the law enforced. His statements often cherry pick the things he likes about the bill while objecting and trying to accept himself from the parts he doesn't like. I agree with these scholars that the President is wrong to do that. He should enforce all the laws. The remedy however should not be to ban his ideas about a piece of legislation. It is instead to Impeach him if they think he is failing to do his job.

That is not an easy thing to do, but it is the appropriate check on Presidents that refuse to enforce the law. Trying to take back power through unconstitutional means is both overkill and bad make that lazy lawmaking.