bookofdays

Paul Gregory House v...Sammy Alito?

Just back from California and  much to tell. But for right now, I want to  note that last Wednesday, while I interviewed brave antiwar veterans, the Supreme Court heard arguments in House v. Bell -- the case I wrote about here, when it was docketed. And according to the Linda Greenhouse ar the Times, the debate was mildly encouragng for House, and all for whom DNA proved their convictions were wrongly obtained.

An argument before the Supreme Court in a 20-year-old murder case suggested on Wednesday that the court might be willing to open the door a bit wider to death row inmates seeking access to federal court to present plausible but belated claims of innocence.

It was a gritty argument with an unusually intense focus on the evidence that a Tennessee jury considered in convicting Paul G. House of the murder of a neighbor, Carolyn Muncey. Justices Antonin Scalia and Stephen G. Breyer were particularly steeped in the details and were deeply engaged on opposite sides of the case, debating it back and forth almost to the exclusion of the lawyers standing before them.

Like I said back then, it's unusual to find a SCOTUS case - even a death penalty case - that talks so explicitly about blood spatters and semen samples. (Then again, the Justices likely watch TV too.)

If Breyer et al. prevail, then my prediction of October may also come true.

Listen to the bigger, broader question the Court also accepted, leading to a rash of headlines like this:

What constitutes a "truly persuasive showing of actual innocence" pursuant to Herrera v. Collins sufficient to warrant freestanding habeas relief?

Listen to that gateway turning, in the Justices' mind, to a floodgate as the history of rotten jurisprudence - sleeping attorneys, watch-checking failure to cross-examine the forensics people, illiterate signed confessions and racist juries - is peeled open like some death-row Superdome. I don't know which Justice insisted it was OK to add the second question, but it's the one that could change the face of death row appeals (or not) very quickly.

Perhaps it's time to ask Sammy Alito, for whom "Scalito" appears to be, according to Dahlia Lithwick and others,  a kind nickname by all accounts,to give his perspective on the execution of innocents. The word, according to Douglas Berman at Sentencing Law and Policy. and Boalt Law School professor Goodwin Liu in the L.A. Times, is not promisng.

Such questioning, if done artfully, might just peel away Alito's"nice guy" facade once and for all.

satyagraha in NOLA

Mahatma Gandhi and MLK would both be proud of what they've done in the Ninth Ward. Not the government - the people standing in front of bulldozers.

When I 've taught introductory composition to community college students, I often insisted on either beginning or ending with an examination of Martin Luther King's "Three Ways of Meeting Oppression." It was in the text as an example of structured argument, one that examined both acquiescence and violence before asserting

The third way open to oppressed people in their quest for freedom is the way         of nonviolent resistance. Like the synthesis in Hegelian philosophy, the principle of nonviolent resistance seeks to reconcile the truths of two opposites acquiescence and violence while avoiding the extremes and immoralities of both. The nonviolent resister agrees with the person who acquiesces  that one should not be physically aggressive toward his opponent; but he balances the equation by agreeing with the person of violence that evil must be resisted. He avoids the nonresistance of the former and the         violent resistance of the latter. With nonviolent resistance, no individual or group need submit to any wrong, nor need anyone resort to violence  in order to right a wrong.      

I was then often tasked with explaining what King (and I) meant by "nonviolent resistance." Did he mean boycotts? Walking around with a sign? I sometimes, even before they hit the news, cited "peace teams" like the Christian Peacemaker Teams, who place their physical bodies between armies and civilians; much of the coverage, since four CPT workerx were taken hostage, has the same kind of incomprehension as my students expressed about King. And talking about Gandhi and satyagraha, actual resistance in this country, about civil rights workers battered by police in Montgomery, just felt like a history lesson.

If I were teaching this spring, I'd start with that essay, and I would have  this example to point to: Ninth Ward residents putting their bodies between their homes and the bulldozers.

john mccain figleafs a national emergency

Those of you who faithfully read this blog only need to know this: the Graham Amendment, the one all set to undo Rasul and kiss habeas corpus goodbye, just got worse. Forget all the press about John McCain's heroic stand on torture (where were you when Gonzales was confirmed, sir?) - in the dead of night, that gnarly little amendment says, basically, that all such declarations are moot: evidence from torture can still be used as evidence in military tribunals. Contact your Senators now, especially if (as for New Yorkers) they're on one of the relevant committees: tell them to refuse, if necessary, to sign the conference committee report.

How do we know all this? Because they love it. Thanks as always, Hilzoy, for pointing out that

According to an amended draft of the measure being circulated Thursday among the sponsors, Graham has agreed to language that loosens the restrictions on terror evidence that’s obtained through “coercive” interrogations that may occur in other countries. Whereas Graham’s previous draft had forbidden the use of such evidence—in accordance with standard rules of military justice—the new draft says that it should be barred only “to the extent practicable.” The latest bill language also now says that the “probative value” of evidence should be considered—in other words, whether the information is persuasive.

on a magic carpet (bomb) ride

I know, it's been forever: I'm reporting simultaneously for two different pieces, one about domestic violence in New York's immigrant communities and one, called informally "The Things They Carry," about a prototypical new veteran I've been following around. And I write this about to head into a meeitng of the Veterans Advisory Board of the NY City Council.

But knowing Seymour Hersh's new piece was hitting today, I had to read it right away, and deliver some of the most disturbing bits to you. And of course, in the time I took to put this together, Jehanne was already giving a more plangent frame to it all.

Everyone who, unlike TV-resistant me,  watched Wolf Blitzer last night already knows Hersh's harshest: that when the inevitable troop withdrawals happen, they'll be replaced by an escalated air war, right on Vietnam-Not-So-Lite Schedule: The Return of Carpet Bombing.

In the battle for the city, more than seven hundred Americans were killed or wounded; U.S. officials did not release estimates of civilian dead, but press reports at the time told of women and children killed in the bombardments.

In recent months, the tempo of American bombing seems to have increased. Most of the targets appear to be in the hostile, predominantly Sunni provinces that surround Baghdad and along the Syrian border. As yet, neither Congress nor the public has engaged in a significant discussion or debate about the air war.

The insurgency operates mainly in crowded urban areas, and Air Force warplanes rely on sophisticated, laser-guided bombs to avoid civilian casualties. These bombs home in on targets that must be “painted,” or illuminated, by laser beams directed by ground units. “The pilot doesn’t identify the target as seen in the pre-brief”—the instructions provided before takeoff—a former high-level intelligence official told me. “The guy with the laser is the targeteer. Not the pilot. Often you get a ‘hot-read’ ”—from a military unit on the ground—“and you drop your bombs with no communication with the guys on the ground. You don’t want to break radio silence. The people on the ground are calling in targets that the pilots can’t verify.” He added, “And we’re going to turn this process over to the Iraqis?

Or maybe we should all hang ourselves.

Just an update on the Graham Amendment, that assault on our constitution that I posted about some time ago. Hilary and Katherine, the two heroines of Obsidian Wings, have stayed on the job, while the rest of us wrung our hands and chirped "Call your Senators."

Specifically, they're going after Senator Graham's completely bizarre statement that "Two medical malpractice claims have come out of this…. Never in the history of the rule of law of armed conflict has an enemy combatant, POW, person who is trying to kill U.S. troops, been given the right to sue those same troops for their medical care." 

First of all, you can just hear the balls rattling off old Mr. Graham's brain: he sees fake whiplash neck braces, people holding their heads, and a darn good talking point. I can't think he really means this:

"[redacted] is from Yemen. He had an injury to his shin and the US amputated more than necessary. However, because he has refused to cooperate with his interrogators, the US military refused for two years to give him a prosthetic limb. The clinic showed him such a prosthetic several times and said that he could only have it if he talked to his interrogators.

Other prisoners who have been denied prosthetic devices unless they cooperate with the interrogators include (...) [redacted] from Saudi Arabia who was denied a prosthetic limb for more than eight months, [redacted] from Yemen who was denied a prosthetic limb for more than two and a half years, and [redacted] from Tukistan (sic) who is without a prosthetic foot to this date, after three years."

* p. 16: One detainee reports the following:

"One mental health professional actually described to Mr. Begg how he could hang himself. She said that he could take his underwear, thread a blanket or trousers through this, and use it to hang himself. Mr. Begg has since been unable to get this image out of his mind, and it haunts him constantly. For a mental health professional to say this to a patient is the height of stupidity, irresponsibility, or sadism."

Moazzam Begg is also among one of the leading plaintiffs in Rasul v. Rumsfeld ( the suit that prompted Graham's legislation.),  and had his story dramatized in last year's Broadway play, Guantanamo. What he carries inside him I cant't imagine.

I just chose a piece of this section, from an extremely complex and important series of posts. PLEASE go  check out the whole series. Please go read.  Be aware. Write and talk about this whenever you can. (And for lobbying marching orders, check here.)

I'll  be back, to talk a bit about my newest pair of projects - my little contribution to the story of the things they carry.

sometimes the flashbacks burn your retina.

Italian journalists are taking revenge for Nicola Calipari in the best way they can:  they kept working, bringing us news we don't want but  need.  About Fallujah  - news that we could have guessed if we thought we could stand it.

In a documentary to be broadcast by RAI, the Italian state broadcaster, this morning, a former American soldier who fought at Fallujah says: "I heard the order to pay attention because they were going to use white phosphorus on Fallujah. In military jargon it's known as Willy Pete.

"Phosphorus burns bodies, in fact it melts the flesh all the way down to the bone ... I saw the burned bodies of women and children. Phosphorus explodes and forms a cloud. Anyone within a radius of 150 metres is done for."

    -- The Independent, US forces 'used chemical weapons' during assault on city of Fallujah

I had just turned ten when photos of the napalmed Kim Phuc streamed across the AP wire.  I was probably still wearing that  Nixon button I got from my father; you can likely count me as one of the millions driven by that image to ask more questions about the war in Vietnam.

As much as they twist my stomach, I hope these images get out even more broadly.  Though I wonder - are people so saturated with fictional violent imagery that they won't have the same impact as 30 years ago?

(Via Hunter at kos.)

buh-bye, habeas corpus?

Oh. My. God.

Here we are, with the Supreme Court finally accepting Hamdan for review, with the McCain/Leahy amendment on torture finally getting some traction, and now this.

The Senate just voted to block access to federal courts for anyone the Pentagon chooses:

"(1) In General: Section 2241 of Title 28, United States Code, is amended by adding at the end the following new subsection:

"(e) No court, justice, or judge shall have jurisdiction to consider -

(1) An application for a writ of habeas corpus based on policies established by the Secretary of Defense under Section 1071 (a) of the National Defense Authorization Act for Fiscal Year 2006 filed by an alien who is detained by the Secretary of Defense, or

(2) any other action, challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant."

(2) Effective Date: The amendment made by paragraph 1 shall apply to any application or other action pending on or after the date of the enactment of this Act."

I spent my morning writing about habeas corpus in an entirely different context. I don't think this would be constitutional if attempted, but please go here, and do what they say.  As the Times notes, Sen. Jeff Bingaman is pulling together some allies to block this poison from entering the already-polluted national bloodstream.  (Hilzoy at Obsidian Wings, who alerted many of us to it, has some observations here about the minimal appeals rights left in by the amendment.)

I missed this on Wednesday, when Hilzoy  first wrote about it,  because I was busy most of the day talking about domestic violence in immigrant families.

At one point Anindita, of the Urban Justice Center, told me a reason many may not call the cops: "These are women [from countries like Pakistan and the Congo] who have grown up terrified of the uniform." If the free pass for SecDef above stands, all of us may feel a little like that.

Hilzoy quotes the decision that prompted this, which is entirely appropriate; I chose a section less directly applicable, but one that reminds us all why This. Can. Not. Stand.

“Executive imprisonment has been considered oppres-sive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England de-veloped the writ of habeas corpus largely to preserve these immunities from executive restraint.” ''

As it turns out, Justice Stevens was actually quoting the great Justice Black, from fifty years earlier.  And here, from that same opinion, is something that speaks to the issue much more powerfully.

The Founders abhorred arbitrary one-man imprisonments. Their belief was - our constitutional principles are - that no person of any faith, rich or poor, high or low, native or foreigner, white or colored, can have his life, liberty or property taken "without due process of law." This means to me that neither the federal police not federal prosecutors nor any other governmental official, whatever his title, can put or keep people in prison without accountability to courts of justice. It means that individual liberty is too highly prized in this country to allow executive officials to imprison and hold people on the basis of information kept secret from courts.

Let's hope that both Roberts and Scalito meant it when they talked about respect for precedent. And that enough Senators (see the link) show some backbone here,  perhaps  building on what they showed last week in the "Rule 21" dance.

glimpses from fog

Well, last Friday was George Freeman, doing his gangstalawyah imitation on us all. This week, it was Richard Holbrooke, who at the State Department and the U.N. had the closest thing to a real conscience of any of them.

But I have my usual change-of-seasons cold, and even looking at my cursory notes doesn't make me think any more clearly.  I'll therefore perhaps write about him  later. Tonight I'll punt to my  betters on all things, and end with a quote from one of my avatars, Frederic Tuten.

The links first:

• Laura Rozen's trip down memory lane, in which she reminds us of a young, passionate Republican congressman named Richard Cheney, determined to  get to the bottom of Iran-contra.
• Firedoglake: as always, your source for intelligent analysis of today's indictments and what they mean for future investigation of WHIG-gate.
• Body and Soul, even while she writes her book about torture, is keepin' one eye on how NOLA is the new neocon playpen. After all, their hit  Baghdad Year Zero. was such a raging success.

And now for something completely different: a celebration of fiction - the hardest, most experimental fiction out there, too. Frederic wrote this for Fence Magazine, so if you want to read the whole thing, pick one up. (And while you're picking up magazines, if you're interested in seeing a story of mine called "Snow Angels," consider buying a copy of the new, struggling Me Three.)

Think of yourself as making art -- however bombastic or vague that may sound even to you--and not as a producer of products or units:  You will thus relieve yourself of worrying about your work's social or political function, since zll art is redemptive, salvational, ennobling and is a protest against ignorance, crime, lies and Death....One beautiful novel shames all broad enterprises and sends brightness through the prison walls of prisons, parliaments, and publishing houses.

(And if  you're worried about the implications of the word "salvational," click on the Fence link and giggle.)

2000

Uh-huh.

As we observe that number, remember also the tenfold more dead civilians.

Some links that fit these reflections:

• I'm late on this, but Maureen Dowd rules in her Miller piece.  Anyone who starts referencing Thackeray, on her  way to slicing Judith Miller to ribbons, demonstrates true class. Read it via Steve Gilliard, if only for the photo.
• It's not enough that they're stressed and getting shot at: now they get to lose it all at the table.
• Eric Schmitt gives the most concise expression to what we're all thinking when Bush/Rice start talking new war: With who?
• Via the Rage Diaries: Data bad! Data confuse government!
• Debra Dickerson's review in Salon of Kayla Williams' book contains this concise, extraordinary passage:

The military is full of diamond-in-the-rough kids like her who might have made a few mistakes but still know that there are uncharted worlds inside them. They know they were destined for a polyester uniform; making a break for the GI's outfit, rather than the burger flipper's -- or, God forbid, the inmate's -- is a daring demand to be taken seriously, to be invested in, to be challenged. To be seen. For poor or lost kids, joining up is an escape attempt, a prison break. Our all-volunteer military remains tenable only because these strivers somehow know that hot marches in the sun and nights spent sleeping in a foxhole will open the door to whatever's buried inside their dreams.

Now that it's Tuesday, I'll wrap up with what's frosted me since Friday  morning -- when I saw George Freeman, a lawyer for the New York Times, on Friday, try  to make Judith Miller's case an integral part of  a lecture on the legal concept of reporter's privilege.the pixie dust Freeman tried to toss in our eyes.

He allowed that Miller's work did not present the best argument for a shield law. "Would I have wanted a different set of facts in this case?" he said, spreading his arms wide. " Of course."

As part of the wider discussion, about how the concept of reporter's privilege involved, we of course discussed the issue of the inclusion of bloggers; having just written the post that appears below, I quoted it to him and suggested blogs were also a "weapon in the defense of liberty." He responded like  lawyer/politician: you'd never get the Senate to support that, he said.

Then Freeman proceeded to give a perfect, party-line defense of Miller. He said that Lewis Libby's original waiver, whose signing was mandatory as a condition of the White House, couldn't  be believed as sincere until the two of them talked -- and that recent events, including the negotiations that led to her release. were a sign that Fitzgerald was becoming "pretty desperate."

He stuck by Miller's story that she had "discovered" her June 2003 notebook just recently; a friend said later that she'd not been able to ask him about reports (by Murray Waas,  and now others) others that Miller only admitted that meeting existed after seeing Secret Service logs that proved she was there.

His politics came clear, and predictable enough, from his opinion of the leak case itself, which mimicked Richard Cohen's = not much of a crime, so he's going to create a conspiracy about a non-crime.  I so wanted to ask him about the Daily News' confirmation of Miller's  "charter membership" in the White House Iraq Group, but I'd used up my question time talking about free speech for blogs.

Now I join the rest of you in waiting to hear how many of the  powerful men, the suns to which Miller's flower turned, are placed under indictment - or whether the administration will decide to raise the flag of secrecy over the whole thing.

and they see only their own shadows

The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its connotation comprehends every sort of publication which affords a vehicle of information and opinion.
        -- Justice Charles Evans Hayes, Lovell v. Griffin, 1934

In the height of the Great Depression, someone had an idea about whether  bloggers should be considered journalists. Not that Justice Hayes, born in 1882, would ever have conceived of the Web, let alone a Web log, as he considered whether the First Amendment applied to broadsheets put out in the city of Lovell, California.

I've been watching elite journalists muse soulfully on the question, "Are bloggers journalists?" for what feels like a sickeningly long time, but is probably only since this past February, when the National Press Club convened its first panel on the question in the aftermath of the Jeff Gannon scandal.

John Aravosis, had investigated a fellow named James Guckert, who had been allowed into the White House press corps under the name Jeff Gannon. Aravosis found out, among other things, that Gannon had advertised his services as a male prostitute online and that his news service, Talon News, was funded directly by the Republican Party (rather like those 18th-century news broadsheets Andie Tucher spoke of in that August lecture).

So with worried faces, a panel that included Gannon,  Congress Daily's John Stanton, former Philadelphia Inquirer staffer Ana-Marie Cox, now running an online column, mused soulfully on whether people like Gannon, or even like Cox, should be taken seriously, or seriously marginalized. (Aravosis, whose work exposing Gannon was the kind of digging Sree likes to talk about, wasn't invited onto the panel, though he spoke from the audience.)

The well-paid journalists in the room were worried, perhaps justly, about this blending of fact and opinion, which depending on who you read (just as with print magazines) can be crude or well crafted, thoughtful or not, original or lazy. These conversations seemed, at that point, kind of theoretical.

Not any more, in the wake of a journalism scandal far more explosive than Jeff Gannon and the resulting talk of a federal shield law, including testimony before Congress on the part of the very journalist who's at the center of the scandal. And the Press Club was at it again, on the same day as some of its  members were asking: do bloggers deserve this shield?  And the panel, this time including  Jane Kirtley, a professor of media ethics at the University of Minnesota, and two TV journalists, agreed "probably not." All of it part of "National Free Speech Week, which may define irony, as noted by Roxanne .

Suddenly we're wondering what sort of writer gets First Amendment protection, and of what kind. And that brings me - briefly, I promise - back to the Supreme Court.