Law

For a second time, a U.S. appeals court has found unconstitutional the provision of the USA PATRIOT Act which forbids recipients of National Security Letters from disclosing that they have received them. After the first time around, Congress amended the law to introduce some minimal judicial review, but maintained the burden of proof on the recipient if the government claimed there were national security reasons for the NSL to remain secret. The courts have ruled that this burden needs to fall on the government. If this continues to stand, then perhaps the rsync.net warrant canary will become superfluous.

The Center for Public Integrity has published a slew of new investigative reports: “Global Warming: Heated Denials” – reporting on climate change denialism pseudoscience from the Heartland Institute. “The Shadow Government” – 900 little-known federal advisory committees wielding influence over public policy. “Divine Intervention” – how the Bush Administration’s initiative to fight AIDS abroad is hampered by conservative ideology. “Broken Government” – an assessment of 128 executive branch failures since 2000. Check them out, and consider providing financial support for this organization, which is one of my top organizations to support. ...

Kat and I attended Alan Korwin’s Bill of Rights celebration, celebrating the 217th anniversary of the Bill of Rights, which was held this evening at the Wrigley Mansion. There were several hundred people in attendance, mostly civil libertarians of both liberal and libertarian varieties, including people from the Institute for Justice and the ACLU. We were asked in the invitation to think about which Amendment is our favorite–I would probably rank the 1st and 4th at the top of my list, of which the 1st is much healthier than the 4th. I’d also put the 8th and 5th high in importance, both of which have taken some recent hits but are showing signs of recovery. And of course the 6th, and the under-utilized 9th… ah, heck, they’re all important. The crowd seemed dominated by 2nd Amendment fans, not surprising since Alan Korwin is the author and publisher of numerous books on U.S. gun laws. The reading of the Bill of Rights and its preamble was excellent, but I was disappointed that the event included a Patrick Henry impersonator played by Lance Hurley of Founding Fathers Ministries. Hurley is a Christian who endorses David Barton’s works of pseudohistory on his website (for which the antidote is Chris Rodda’s Liars for Jesus), and at the event argued in character, with quotations from Henry, that the 2nd Amendment came from the teachings of Jesus Christ, that the American revolution was fought on Christian principles, and the Constitutional Convention succeeded because of Ben Franklin’s prayer. He also stated, when there were discussions of the health of the first ten amendments to the Constitution, that freedom of religion is in serious danger, because no one can mention God in schools but the Koran can be discussed. This is simply untrue–God and the Bible can be discussed by students, but such discussions cannot constitutionally be imposed by state agents such as teachers and administrators in a way that constitutes an establishment of religion. The Bible can be legally taught as the combination of myth, history, poetry, literature, and religious doctrine that it is, but Christianity cannot be endorsed as true by state agents. The same rules apply to the Koran. Hurley seems not to realize that Madison’s version of the First Amendment won out, not Henry’s. Some Christians–and it appears that Hurley may be one of them–have a view that their freedom of religion is infringed if they are prevented from legally imposing their religion on others through acts of state agents. I’ll find it amazing that Christians consider themselves to be a poor, persecuted minority prohibited from expressing their religious views when they are, in fact, regularly engaging in establishment clause violations, and Congressmen are signing on to bills like last year’s House Resolution 847. Hurley does public speaking as both Patrick Henry and George Washington–I wonder if his George Washington is historically accurate with respect to Washington’s religious views. He’s also an advocate of conspiracy theories (Illuminati, Trilateral Commission, Bilderbergers, etc.) and an advocate of the National Day of Prayer. Further fringe elements were represented at the event by Ernie Hancock of the Ron Paul Revolution, who distributed multiple pieces of literature promoting his Freedom’s Phoenix website, billed as “uncovering the secrets & exposing the lies.” That site also promotes conspiracy theory, including “9/11 truth” conspiracy claims. In the discussions, several people brought up Phoenix’s recently installed freeway traffic speed cameras as evidence of the sickliness of the Bill of Rights, though no one really offered an explanation of how the Bill of Rights is violated by them. And the objection seemed to only be to the cameras, not to speed limit laws. I’m not a fan of speed cameras, and I agree that they are more of a revenue generation method than a safety measure, but I don’t see an obvious case that they violate the Bill of Rights. That’s not to say that the event was entirely dominated by the lunatic fringe–one woman in the audience commented that she was particularly concerned about the 4th Amendment, because she is now regularly stopped at a “border checkpoint” while driving between destinations well inside the U.S. border, because of the 100-mile “Constitution-free zone” that the courts have created around the perimeter of the U.S. And Jennifer Perkins of the Institute for Justice pointed out that even though the U.S. Supreme Court blew a gigantic hole in the 5th Amendment with the Kelo case, nearly all of the states have passed legislation adding further protections against eminent domain abuse (and Arizona’s are the strongest). There was one critical mention of the USA PATRIOT Act (by the Patrick Henry impersonator, to well-deserved applause), but no mention of Guantanamo Bay, the Military Commissions Act, or torture that I noticed. I think concern over traffic cameras is at least a bit lower on the priority list than any of these items. A point in favor of the Patrick Henry arguments is that he correctly identified the risk of expanding executive power and judicial decisions that disregarded basic rights (the fact that the Bill of Rights, as well as the Constitution itself, has many passages that have effectively been written out of it, is testament to the accuracy of that prediction). The First Amendment’s guarantee of free speech, at least, is alive and relatively well. UPDATE (December 16, 2008): Ed Brayton at Dispatches from the Culture Wars points out that Ron Paul introduced the American Freedom Agenda Act which would: Repeal the “Military Commissions Act of 2006” and thereby restore the ancient right of habeas corpus and end legally sanctioned torture by U.S. government agents Restore the “Foreign Intelligence Surveillance Act” (FISA) and thereby outlaw warrantless spying on American citizens by the President of the United States ...

Mario Chavez was driving drunk when he hit another car, killing its driver, 20-year-old University of Maryland student Brian Gray. Gray’s mother was traveling behind him in another vehicle, and watched her son die. When police arrived at the scene, they did not bother to give Chavez a test for his blood alcohol level. Chavez lied to investigators about what he was doing prior to the crash, claiming he was sleeping even though his cell phone records show that he was talking on the phone. He didn’t lose his job and he has only received a speeding ticket. Brian Gray, however, had blood taken from his dead body to see if he had been drinking, but he had not. It seems the rules are different when the guilty party is a police officer. Mario Chavez is a Prince George’s County, Maryland police officer who was driving his patrol car at the time of the accident. For some reason the black box recording device for his police cruiser has not been checked for evidence due to “software problems.” A page of nurse’s notes about Chavez after his admission to Prince George’s Hospital after the crash has also disappeared. (Via The Agitator.) ...

Lest there was any remaining doubt that the 1954 insertion of “under God” into the pledge of allegiance was explicitly religious, the news has covered the death of the Rev. George M. Docherty, a Presbyterian minister from Scotland, noting that it was his sermon heard by President Dwight D. Eisenhower that prompted the change: “I didn’t know that the Pledge of Allegiance was, and he recited it, ‘one nation, indivisible, with liberty and justice for all,’” he recalled in an interview with The Associated Press in 2004. “I came from Scotland, where we said ‘God save our gracious queen,’ ‘God save our gracious king.’ Here was the Pledge of Allegiance, and God wasn’t in it at all."He delivered his sermon calling for “under God” to be added to the pledge first in 1952 with little effect, but delivered it again on February 7, 1954, while Eisenhower was in attendance at the New York Avenue Presbyterian Church in Washington D.C., near the White House. Eisenhower immediately let Congress know he wanted it to happen, and Rep. Charles G. Oakman (R-MI) introduced a bill the very next day to make that addition, which Eisenhower signed into law on Flag Day. Michael Newdow currently has a second lawsuit working its way through the courts to remove “under God” from the pledge on the grounds that Congress’s action was a violation of the establishment clause of the First Amendment. His first lawsuit went to the Supreme Court, where the justices declined to rule on the merits of the argument, and instead reasoned that he lacked standing to bring the suit because he was involved in a custody dispute over his daughter, who was the plaintiff because she was required to recite the pledge in school. That ruling, like Eisenhower’s signing of the original unconstitutional bill, was delivered on Flag Day (in 2004).

The case of Philip J. Berg v. Barack Hussein Obama, filed in the eastern district of Pennsylvania in an attempt to argue that Obama cannot become president because he is not a U.S. citizen, has been joined by Paul Andrew Mitchell, a “private attorney general” and 9/11 truther known for filing nonsensical papers with the courts. The character of Mitchell’s filing can be seen on p. 5, where he writes that “I, Paul Andrew Mitchell, Sui Juris, hereby verify, under penalty of perjury, under the laws of the United States of America, without the ‘United States’ (federal government), that the above statement of facts and laws is true and correct …” The italics and bolding are as in the filing. Mitchell is one of the crackpots who argues that the United States of America is distinct from the United States and that he’s not subject to the laws of the latter, including the income tax, because he’s a “sovereign citizen." Mitchell used to be a customer of Primenet, an Internet Service Provider based in Phoenix, that was my employer. He named us in one of his lawsuits, along with numerous other ISPs, on the grounds that one of our users had the temerity to put a link on his web page to a copy of Mitchell’s “The Federal Zone: Cracking the Code of Internal Revenue.” Mitchell insisted that he didn’t authorize that copy of his work, and that our user’s link constituted contributory infringement of his copyright. When I pointed out that the link was actually a dead link and didn’t point to anything at all, this did not persuade him that Primenet shouldn’t be sued. He never bothered to properly serve Primenet with papers, and the case was thrown out of court. Mitchell is or was also a member of the “Scholars for 9/11 Truth” organization; I’ve previously written more about Mitchell and that organization on this blog. ...

The FFRF’s “Imagine No Religion” billboard in Rancho Cucamonga, California, is being removed by General Outdoor Advertising after they received a request to remove it from the city. The city asserts that it requested the removal but did not demand it, and therefore did not violate the First Amendment. The contract no doubt gives General Outdoor the ability to back out of the contract and refund the money in response to controversy. FFRF says the company has agreed to refund the money. The city reports that they received about 90 complaints. Has anyone ever heard of a religious billboard in this country being removed after a government request? UPDATE (November 25, 2008): FFRF plans to sue Rancho Cucamonga for this infringement of its freedom of speech. The city’s Redevelopment Director, Linda Daniels, apparently realizes now that she has done something wrong, and has changed her story: Last Thursday, Redevelopment Director Linda Daniels said a member of her staff had informed the sign company about the 90 complaints the city received regarding the billboard. ...

Sarah Palin says that Bill Ayers counts as a domestic terrorist for setting off bombs, but declines to apply the term to those who set off bombs to blow up abortion clinics: WILLIAMS: Are we changing – it’s been said that to give it a vaguely post-9/11 hint, using that word that we don’t normally associate with domestic crimes. Are we changing the definition? Are the people who set fire to American cities during the ’60s terrorists in – under this definition? Is an abortion clinic bomber a terrorist under this definition, Governor? ...

Via the Reason blog: The 1976 U.S. Supreme Court case of U.S. v. Martinez-Fuerte established an exception to the Fourth Amendment, allowing the federal government to establish roadblock checkpoints within 100 miles of U.S. borders to stop people and search for illegal immigrants and smuggling. The ACLU notes that 190 million people live within 100 miles of U.S. borders, providing this helpful map. (Although Lake Michigan is entirely within U.S. boundaries, by treaty Canada is allowed full navigation rights to the lake–so it’s not clear if that 100-mile boundary would actually be as in the ACLU’s map around Lake Michigan.) There are currently 33 checkpoints in operation within the boundary area. Here’s some video footage of one of them in Arizona: (Via Checkpoint USA, which has numerous videos of interactions at one of these temporary checkpoints.) ...

The bailout bill has a few extra features: * Sec. 105. Energy credit for geothermal heat pump systems. * Sec. 111. Expansion and modification of advanced coal project investment credit. * Sec. 113. Temporary increase in coal excise tax; funding of Black Lung Disability Trust Fund. * Sec. 115. Tax credit for carbon dioxide sequestration. * Sec. 205. Credit for new qualified plug-in electric drive motor vehicles. * Sec. 405. Increase and extension of Oil Spill Liability Trust Fund tax. * Sec. 309. Extension of economic development credit for American Samoa. * Sec. 317. Seven-year cost recovery period for motorsports racing track facility. * Sec. 501. $8,500 income threshold used to calculate refundable portion of child tax credit. * Sec. 503 Exemption from excise tax for certain wooden arrows designed for use by children.It also includes tax credits for solar and wind power, a requirement that health insurance companies cover mental health the same way they cover physical health (so look for some huge premium increases on your health insurance). And during all the bailout bill discussion, Congress quietly authorized another $612 billion defense authorization bill. (Via The Agitator.) ...