Legal Roundup

There have been a lot of matters in our nation's courts that have caught my attention of late, so I thought I'd take a look at them.

• The Supreme Court today took on a case over whether the government should be able to regulate carbon dioxide emissions. Massachusetts v. EPA was an attempt to force the federal government's hand at doing something about climate change. This article appears to show that it will be a close call, with Anthony Kennedy deciding the outcome.

Wednesday's arguments focused largely on the issue of whether Massachusetts could bring the case in the first place, with several conservative justices arguing that Massachusetts had not proved the danger to its coastline was imminent enough to merit the suit, or that the reduction in greenhouse gas emissions that could be achieved by limiting exhaust emissions – some 2.5 per cent of total US greenhouse emissions – would be significant enough to give them the right to sue.

"It depends what happens across the globe," Chief Justice John Roberts said, noting that any reduction in US emissions might be overcome by a rise in emissions caused by China's rapid economic development. Several liberal justices supported Massachusetts but the pivotal swing justice, Anthony Kennedy, did not reveal where he stood.

The court appeared similarly divided on the issue of whether the EPA had the authority to refuse to regulate or whether its reasons for doing so were valid.

The reasons the conservative justices are giving are dopey. Just how long should we wait before acting on global warming? Does the coastline have to extend inland to Cleveland? As for Roberts' notion that we should base our policies on what China does, it's a wonder that we end up passing any laws at all in that case. Why not just wait for every other country on the planet to act before we get started?

The ruling will come down sometime next year.

• The Supremes also ruled against two NYTimes writers and said that the federal government could seize their phone records in their investigation into who leaked classified information on terrorism funding. I think this sets a bad precedent, particularly for other reporters like Dana Priest (CIA prisons) or James Risen and Eric Lichtblau (warrantless wiretapping). I worry about the future of freedom of the press.

• About those terror groups... a different court ruled that Bush could not be the decider on who's a terrorist and who's a freedom lover:

A federal judge struck down President Bush's authority to designate groups as terrorists, saying his post-Sept. 11 executive order was unconstitutional and vague.

Some parts of the Sept. 24, 2001 order tagging 27 groups and individuals as "specially designated global terrorists" were too vague and could impinge on First Amendment rights of free association, U.S. District Judge Audrey Collins said [...]

The ruling was praised by David Cole, a lawyer for the Washington, D.C.-based Center for Constitutional Rights, who represented the plaintiff Humanitarian Law Project.

It "says that even in fighting terrorism the president cannot be given a blank check to blacklist anyone he considers a bad guy or a bad group and you can't imply guilt by association," Cole said.

I guess the judge has a bad definition of freedom. You know, if these guys just played by the rules, so much of the anger directed at their policies would be blunted. Their failure to do so displays nothing but arrogance.

• This great news shows that we may be getting on the way to some real accountability over the contracting and mercenary situation in Iraq:

In what may be the first chink in the badly beaten Bush body armor, Blackwater Security Consulting was ordered yesterday to stand trial for killing four of its employees in Fallujah in 2004. As seen in "Iraq for Sale: The War Profiteers," Blackwater sent a small, undermanned convoy into the most dangerous city on the planet - Fallujah - in March 2004, without maps, proper equipment or proper protection.

The result was the grisly death of four men, two of whose charred carcasses were strung up from a bridge. Thanks to Blackwater's parsimony, not only were men killed, but the remotest hope for seeing the US as a benevolent force in Iraq was crushed when marines then fought a three week battle to recover the corpses and somehow punish the people of Fallujah for killing the men.

Blackwater will fight this in the Supreme Court, claiming that they are an extension of the US military and as such above the law. The outcome is uncertain, but clearly the Democratic Congress is going to have something to say about this tragic circumstance of profit over people. Jane Harman, at an "Iraq for Sale" screening last night, reflected the dominant view of Democrats by saying that she believed in "holding war profiteers accountable for their actions, including facing criminal prosecution."

• This is a even better report regarding accountability:

Five years after Muslim immigrants were abused in a federal jail here, the guards who beat them and the Washington policymakers who decided to hold them for months without charges are being called to account.

Some 1,200 Middle Eastern men were arrested on suspicion of terrorism after the attacks of Sept. 11, 2001. No holding place was so notorious as Brooklyn's nine-story Metropolitan Detention Center. In a special unit on the top floor, detainees were smashed into walls, repeatedly stripped and searched, and often denied basic legal rights and religious privileges, according to federal investigations.

Now the federal Bureau of Prisons, which runs the jail, has revealed for the first time that 13 staff members have been disciplined, two of them fired. The warden has retired and moved to the Midwest.

And in what could turn out to be a landmark case, a lawsuit filed by two Brooklyn detainees against top Bush administration officials is moving forward in the federal courts in New York.

A judge turned down a request by FBI Director Robert S. Mueller III and former Atty. Gen. John Ashcroft to dismiss the lawsuit against them. The case is before an appeals court, where a panel of three judges signaled last month that they too believed it should go forward.

Our national soul must be cleansed of the damage done to it in the aftermath of 9-11, where that attack was used to justify all sorts of abuses and trashing of civil liberties. Some call it rehashing the past; I call it following the law.

• And finally, I've been an interested observer of the strange case of Vernon, California, which has so many twists and turns. A primer is available here. The city fathers were obviously corrupt, and while they held on in the election, they appear to be getting their comeuppance. Now it turns out that the man who goosed the three residents into filing for city council, former South Gate treasurer Albert Robles, has been sentenced to 10 years from robbing that city of millions. He came up with one of the more interesting alibis that I've ever heard:

A federal judge handed down the sentence after Robles said in an impassioned speech that he had acted "immorally" during his years as leader of South Gate, but never broke the law.

"There are different levels of hoodwinking, but I didn't think hoodwinking was a crime," Robles said. "During that period I decided not to be a very good man every day. But I did not decide to be a criminal." [...]

(Judge Stephen V.) Wilson seemed incredulous at Robles' defense. When Robles' attorney argued that what the ex-treasurer did was business as usual in California politics, the judge responded that "what you have just said is among the most absurd things I have ever heard."

Man, I have to make the Vernon documentary. It's so damn interesting, if only to me.