"To get out of a ticket... Don't break the law."

That's the advice given by a police officer to the public on a website called "Cops Writing Cops: Where's the courtesy?" (hattip Scott Greenfield at Simple Justice) By "Writing" they don't mean love notes or blog entries, but mean tickets. Or, in the words of the officer who created the site, the purpose is:

If you are a police officer, trooper, court officer, correction officer, telecommunicator, highway patrol, federal agent, or any other type of police (peace) officer... that has been disrespected or insulted by another police agency (officer) by not receiving some sort of professional courtesy, please email staff (at) copswritingcops.com with the information."

Yes, the "don't break the law" advice doesn't extend to the brothers in blue as further down the page, the same guy who wrote this writes:

"Yes it’s true, cops usually don’t give other cops tickets. Think of it as an employee discount, perk or benefit. Other Cops are family and you wouldn’t give your brother a ticket if you were a cop either."

The Equal Protection clause isn't very fashionable here, but I'm sure those other parts of the Constitution are taken very seriously!

Reminds me of when I was in high school and my girlfriend at the time was babysitting for a police lieutenant's family. As the girl was getting a ride home, they were pulled over for speeding and the first words out of the officer's mouth weren't "your license and registration" but "I'm sorry! I didn't know it was you!" And that was the end of the traffic stop. I remember being shocked at this episode, at the lack of principle or even concern for whether the law was broken.

But wait, as a criminal defense attorney, don't I qualify as a "court officer" entitled to a little "professional courtesy" under the above definition. What am I complaining about? I'll just pull out my "Nebraska Criminal Defense Attorneys" card at my next traffic stop and threaten to expose their lack of "professionalism" on this site if they have the nerve to ticket a fellow "court officer."

Anybody want to bail me out afterwards?

Symbols of Our Prison Culture

On Friday, the PBS program Bill Moyers Journal ran a fascinating interview with former corporate attorney turned photographer Chris Jordan about his work "Running the Numbers: An American Self Portrait." The two that caught my eye are shown above and they reveal what the prison population of America in 2004 truly looks like, if each of the 2.3 million prisoner's uniform were folded and stacked together. As Jordan says on his website:

My hope is that images representing these quantities might have a different effect than the raw numbers alone... Statistics can feel abstract and anesthetizing, making it difficult to connect with and make meaning of 3.6 million SUV sales in one year, for example, or 2.3 million Americans in prison... This project visually examines these vast and bizarre measures of our society, in large intricately detailed prints assembled from thousands of smaller photographs.

On the Moyers program, Jordan described what he was trying to show in the photographs above:

We have the largest prison population of any country on earth. There's also no other country that has that percentage of its population in jail. And that includes all of the dictatorships that we think of as the enemies of freedom."

Here's another way of looking at it: According to Wikipedia, "The United States has 5% of the world's population and 25% of the world's incarcerated population." So, while 1 in 20 of the world's population hails from the so-called "Land of the Free," 1 in 4 of the world's prisoners calls America home.

Isn't there a lesson here about how we can show judges the "big picture" as we ask them not to add to this grotesque scene? When we step back at look at what our prison population truly looks like, don't we have a better argument (especially in the case of non-violent drug offenders) that adding another orange uniform to this picture means isn't the only way, or the right one?

Gerry Spence - Falsely Accused of Terrorism

"Don't Taze Me Bro!"

That's what you can hear the young man yelling just before the cops taze him (video below) for refusing to obey their commands to "stop resisting" as 3 to 4 cops lie on him in the back of the auditorium.

At one point, Kerry says something about "he's unavailable to come up here and swear me in as President." It seems to me that's Kerry trying to laugh at the situation but what a pathetic spectacle to have a Democratic Senator droning on and making jokes while the young man is screaming his lungs out.

Admittedly, the kid was being rude but tazing him for this! Here is a comment I left at Talkleft:

"What a great metaphor for the position much of the Democratic party takes with regard to the so-called "fringe" that is demanding action on Iraq and against the Bush administration. Like the female officer who screams "stop resisting" (which has no real effect on a very frightened kid) they want to ignore these inconvenient truths, like the skull and bones society link, and tell us, at a time when we're surrounded by people who seem to have no regard for either the Constitution or the rule of law, simply to "stop resisting."

And Kerry carries on as if he can't even hear this, hoping it'll be over soon. What a sad display of force, juxtaposed with apathy, bearing down on a kid who, albeit rudely, is asking a question about the insider nature of our government, a government that currently seems oblivious to what the people truly want, whether it be with regard to Iraq, to a popular election, or to why the opposition to Bush is perpetually capitulating.

UF Student tasered at John Kerry Speech

Going to Jail for Refusing to "Be Still" in Court

Last year, when I was still in the Public Defenders Office, I was in court with a child who was being arraigned by the judge for a juvenile delinquency charge. The transcript below shows what happened, but first a little background.

As you can see, the judge very quickly began speaking directly to my client. What set her off was the moment that I pivoted in my chair (I'm serious!) and turned to tell him to behave himself since I was afraid, from the way she was talking to him and from his demeanor that he would either say something that would further draw the judge's ire or else say something incriminating about his case.

I haven't written about it for several reasons, not important for right now, and I've only shared the transcript with a few people since my former boss told me, at the time, to keep it quiet until he decided what to do. I don't think he ever did anything, but I could be wrong as I never asked him and quit that job two months ago to start my own practice.

Anyway, here's the transcript. What do you think?

(At 11:45 a.m., on January 26, 2006 in the Separate Juvenile Court for Douglas County, Nebraska, before the HONORABLE ELIZABETH G. CRNKOVICH, with Ms. Kristin Huber appearing on behalf of the State; with Mr. David Tarrell appearing on behalf of the minor child; and with the minor child Larry ****** being personally present with his mother, the following proceedings were had: )
THE COURT: What’s the matter, Larry?

LARRY ******: (nodded head)

Mrs. ******: She’s talking to you.

LARRY ******: I said nothing.

Mrs. *****: No you didn’t.

THE COURT: No, you didn’t. When I walked in, you’re very—it was – I don’t want to start anything, but I, I want you to know that, that you—you’ve got the judge you’ve have and—Mr. Tarrell, can I talk to your client for a moment?

MR. TARRELL: Well, I—

THE COURT: Can I talk to him, please, for a minute?

MR. TARRELL: Yeah, I’m – you know, I’m—

THE COURT: Thank you.

MR. TARRELL: Judge, you know—

THE COURT: Thank you, I’m just going to visit with him for a second.

MR. TARRELL: Judge, you know what—

THE COURT: You- Just a moment. Mr. Tarrell, if you do not be still, I’ll find you in contempt.

MR. TARRELL: You can find me in contempt.

THE COURT: All right.

MR. TARRELL: I think it’s important that I talk to my client, okay, Judge.

THE COURT: All right. Just a moment. Just a moment.

MR. TARRELL: If you want me to play a role here, then let me play that role.

THE COURT: I’d like a sheriff please, thank you.

MR. TARRELL: I think it’s important for me—

THE COURT: Just a moment. If you open your mouth, I will incarcerate you; do you understand?

MR. TARRELL: I think I should get a chance.

THE COURT: All right. I’m finding you in contempt of court because you have refused to follow the court’s order to be still. I need a sheriff.

(Deputy sheriffs entered the courtroom at this time)

[Note: When the sheriffs came in, they were responding to a “panic button” so three of them ran into the courtroom, the first one holding a taser. When they saw a calm situation, with everyone sitting in their seats, they looked surprised. So I stood up in my seat, and stuck my hands out behind me so they could cuff me. I was thinking at the time that the judge probably wanted me to beg to not be arrested, so I was “calling her bluff” by doing this. When I did this, she slammed her hand down on the bench and screamed the next line at me. The rest of the conversation is a battle over the record, as she’s trying to make it seem as if I’m not complying with her orders and I’m trying to show everything that is going on]

THE COURT: Sir, Mr. Tarrell, sit down, sit down in your seat now.

MR. TARRELL: Your honor--

THE COURT: Sit down and be still, sit down. I have three deputies here. I am ordering you this last time to sit in that chair. Are you refusing?

MR. TARRELL: Your honor, I need to make a record.

THE COURT: Are you refusing? Yes or no?

MR. TARRELL: I will sit down in the chair, but I need to make a record.

THE COURT: Thank you. We have a clear record here.

MR. TARRELL: I don’t think we do.

THE COURT: You are in contempt of this court. I am ordering the deputies to take you back at this moment.

MR. TARRELL: Your honor, what I want to put on the record is—

THE COURT: Deputies, now.

MR. TARRELL: I think I should—

THE COURT: Stop, we do not have a record. I have ordered him to be removed.

MR. TARRELL: It doesn’t have to be this way.

THE COURT: I know that sir, it didn’t have to be this way.

MR. TARRELL: I’d like to try to play the role that you want me to play.

THE COURT: Go, go.

MR. TARRELL: Okay. I’m not going to be intimidated by you. I’m trying to do my job, the job you asked me to do. Now, please put that on the record. It’s not fair.
(MR. TARRELL exited the courtroom at this time)


THE DEPUTY: Would you like me to stay ,or?

THE COURT: No, I’m not having any difficulty with anybody else. I was just going to have a conversation with the young man.

THE DEPUTY: Sure. If you needed me to stay. I was just asking.

THE COURT: No, that’s fine. Just hang on to Mr. Tarrell for a moment, please.
Young man, I’d like to explain where I was beginning, but under the circumstances, it would not be appropriate because your lawyer doesn’t need to be with you. Let me say that you remain in good hands in terms of your legal representation. I think there was just clearly something else going on , and the court has a responsibility to maintain its authority, so I’m going to take a recess. You may be excused.
(a brief recess was taken and all parties exited the courtroom.)

[Note: they took me into the back room, where they book prisoners into jail. The deputies all treated me very well and it seemed like they hated to be doing what she told them to do. I was wearing an antique watch and one deputy offered to keep it safe for me as they told me to take it off for processing into jail. I had my shoes, tie, and watch off when the judge called the sheriff’s phone and told them to bring me back into the courtroom]

(the proceedings reconvened with only Mr. Tarrell present in the courtroom.)

THE COURT: Mr. Tarrell, are you ready to listen for just a moment?

MR. TARRELL: Sure.

THE COURT: All right. No. 1, my experience with you has been that you are a fine and dedicated lawyer who more than adequately represents your clients in juvenile court, and that impression has not changed.
No. 2, it matters not your opinion of the court in a professional way because the fact remains that I am the judge in this court and when I issue a command, it is required to follow that command.
Now, what you did not know is what I observed when I walked in, and I made an effort to relate to and communicate with your client merely to set the stage so that we could proceed. I do understand, because I also observed this, you were attempting to communicate with him, and I have no doubt that you were trying to tell him, hey, shape up, so that he would not then get himself in trouble with the court. However, the court had a handle on it, and the court was addressing your client. Everything that transpired from that point when I asked you to cease was contemptuous of the court and, I must suggest, of this particular Judge, and I will not tolerate it.
Now, you stated truly that it didn’t have to lead to this, and I agree with you. But you have to reflect that not once but at least six times in the course of ten minutes you refused to follow a directive of this court, either to be still and/or to sit down. I did not escalate this.
I do not wish to find you in contempt. I do not wish to incarcerate you. I do not wish to have this kind of exaggerated incident happen again . It doesn’t serve you, it doesn’t serve the bench, and it doesn’t serve the kids and the families.
Now, I took a recess. This may not be the time to address the two boys and their family. I am happy to continue it until after lunch when calm and reason can prevail or to another day. I will give you an opportunity to talk to your clients. I will allow you to leave freely and without the deputy. You may be excused.
(12: 06 p.m. adjournment accordingly)

Unequal Protection Clause

Many other bloggers are writing excellent commentary about Bush's decision to commute Scooter's 2.5 year sentence. Digby insightfully linked to this article from two weeks ago (headlined "Bush Seeks To Re-Impose Mandatory Minimums") regarding the Bush Justice Department's desire to impose legislation to require mandatory minimum sentence for those, like Scooter, convicted of federal crimes. Compare the language below to Bush's comments about Scooter last night:

First, here's Gonzo one month ago:

In a speech June 1 to announce the bill, Attorney General Alberto Gonzales urged Congress to re-impose mandatory minimum prison sentences against federal convicts — and not let judges consider such penalties “merely a suggestion.” Such an overhaul, in part, “will strengthen our hand in fighting criminals who threaten the safety and security of all Americans,” Gonzales said...
Justice officials also point to a growing number of lighter sentences as possible proof that crime is on the rise because criminals are no longer cowed by strict penalties"

And here's Bush last night:

"Mr. Libby was sentenced to 30 months of prison, two years of probation and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation. I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive."

So, lets recap: "Crime is on the rise because criminals are no longer cowed by strict penalties," and the law should be changed to require judges to impose prison rather than probation. But, the judge Bush himself appointed, Reggie Walton, who sentenced Scooter to prison time was acting "excessively" when he imposed a prison sentence.

Have you ever seen a more blatant example of changing the Equal Protection Clause from "no state shall… deny to any person within its jurisdiction the equal protection of the laws" into George Orwell's famous "All Pigs are Equal but some Pigs are More Equal than others?"

Finally, here's what Patrick Fitzgerald's spokesperson had to say on the subject (h/t emptywheel):

We comment only on the statement in which the President termed the sentence imposed by the judge as “excessive.” The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws. It is fundamental to the rule of law that all citizens stand before the bar of justice as equals. That principle guided the judge during both the trial and the sentencing.

Glenn Greenwald nicely sums up what this day means, including this obvious statement that you strangely won't read about in most papers:

"The Plame investigation was urged by the Bush CIA and commenced by the Bush DOJ, Libby's conviction pursued by a Bush-appointed federal prosecutor, his jail sentence imposed by a Bush-appointed "tough-on-crime" federal judge, all pursuant to harsh and merciless criminal laws urged on by the "tough-on-crime/no-mercy" GOP. Lewis Libby was sent to prison by the system constructed and desired by the very Republican movement protesting his plight... In every country ruled by a lawless government and a corrupt political and media elite, powerful political officials do not go to prison for crimes. That is why convicted felon Lewis Libby will remain free."

How might Bush respond to Greenwald's "emperor has no clothes remark?" Probably the way Lil' Bush responded to the NYT reviewer who called the show "tasteless:"

"Expect a visit from Homeland Security, writer guy!"

What You Won't Read About the 'Pants' Case

Just this morning, when my 17-year old client was asked, by the victim of a theft for $25,000 in restitution, ($16,000 of which was listed as "pain and suffering") the judge jokingly remarked that "well, if someone can see $50 million of some pants...). In short, the "Pants Case", which was properly decided in favor of the defendant last week, will probably be held up for years as an example of how the system is in need of more "reform" (less corporate responsibility) rather than an example of a system that worked exactly as it should. In fact, I wonder if the judge who brought the suit (as a lawyer, not a judge) will be sanctioned or forced to pay attorneys fees for bringing the suit. If he is, expect to read about it on page 10 of the local paper, rather than in the newspapers covering this story as litigation run amok.

But this op-ed, pointed out on the TLC listserve, from the Houston Chronicle got my attention. An excerpt:

Tort reformers want to ban most, if not all, of these lawsuits and they
claim that eliminating them would translate into lower prices for the
consumer. The reasoning suggests that without the penalties associated with
launching an unsafe drug, pharmaceutical companies would enjoy larger
profits and be able to manufacture cheaper aspirin.

The problem with this flawed approach is that it has no end. Without
lawyers, homebuilders could build less expensive homes and not worry about
being sued due to defects in craftsmanship. The price of a pack of
cigarettes would decline because companies would not be held accountable for
the proven medical costs associated with smoking. And our stores would be
stocked with an endless supply of cheap toys because companies could
eliminate "safety" from their list of priorities...

Not every lawsuit is justified, not every verdict is legitimate and not
every lawyer is perfect. Lawyers, like people in any other profession, make
mistakes, and some lawyers file frivolous lawsuits. But our system works
because judges and juries are usually smart enough to recognize these
lawsuits for what they are, and they not only find for the defendant, but
they also sanction the people responsible for bringing the case.

The next time you hear Ann Coulter call John Edwards a "Las Vegas shyster," ask yourself what motives Ann could have for turning public opinion further against lawyers who represent people instead of corporate interests.

What's in it for Ann if the people follow Dick the Butcher's advice to "first kill all the lawyers?" Why would Ann want you to focus on her critics' hair rather than on her own motivations?

Who's really looking out for you?

Bush's Deadly Virtues

Glenn Greenwald, who will be releasing his new book "A Tragic Legacy" next week, has a post up today in which he quotes Andrew Sullivan of the Atlantic quite

There is still a chance to repair the damage -- but given how much we have lost since 9/11, the constitutional consequences of another major attack are likely to be terminal to the American experiment in liberty. If a Giuliani or a Cheney is in power on such a day, we can kiss goodbye to the constitution. . . . America has exchanged some if its basic freedoms for the patina of phony security -- and so easily. The Republican party, to its historic shame, has been the main vehicle for the replacement of doubt, empiricism and calm judgment with certainty, fundamentalism and raw force.

Greenwald goes on the explain the purpose behind his book, and his blog:

The principal value, and the necessity, of examining the underlying assumptions and beliefs which have led us to this point -- an examination which is the primary purpose of A Tragic Legacy -- is not merely to provide some historical account of the last six years. Rather, it is to describe the extreme challenges America faces in recovering from the Bush legacy and, more important still, to expose the corrupt foundations of our political discourse -- ones embraced by the right-wing movement and our establishment media figures alike -- in order to change the terms and outcomes of those debates.

Greenwald goes on to note the futility of debating whether or not Bush's conversion is real or opportunistic, saying "the need to combat and refute the framework he offers -- that those who are committed to Christian piety must join his battles -- is urgent whether or not he personally, deep down, truly believes in those claims." In response, I left the following comment, which I was hoping would prompt a reply:

I agree that, rather than focusing on whether their alleged conversion is real or not, we first need to combat the destructive actions and uncover the philosophical framework that lies beneath leaders like Bush and Nkunda. Whether they quote scripture for devilish purposes or truly believe their unlawful, immoral, unChristlike means are justified is a question for historians as we have bigger, more pressing fish to fry.

Bill Moyers created a series in the late 80's which featured the Rev. Forrest Church (son of Sen. Frank Church of the commission) in which he described our nation's "virtues" as potentially more dangerous than our "sins." He summarized this by warning that "the devil most often appears in drag." Recently, Church commented on the grip of Bush's brand of Christianity on our foreign policy:

American fundamentalism... by trivializing sin into a moralistic catalogue of personal foibles... reserve[s] the badge of real evil for others... Luther put it this way: "The final sin of man is his unwillingness to concede that he is a sinner. ... [R]evelations of prisoner abuse in Iraq... should serve as a reminder to all of us, especially the idealists who drive our nation's foreign policy, of the first law of history: to "Choose your enemies carefully, for you will become like them."

Isn't that a pretty good summary of "the Decider" and his tragic legacy? Rather than contemplating how the sermon on the mount (which ironically I discovered via a reference in Vonnegut's last book) should affect a Christian politician's view of government, he simply says "We don't torture" and forces the soldier who reported this into retirement. (And he does this after viewing a picture of a naked Iraqi decorated by an American soldier with lights made in a Chinese factory to celebrate Christ's birth!) In short, the administration is so blinded an "with us or against us" mentality, that they don't see evil even when it plainly emerges from our side.

Rather than mobilizing the moral authority we held in the pre-9/11 world or utilizing any of the world's sympathy we received as a result of it, they disregard this rule of history, along with the Constitution and the law they swore to uphold. Instead of considering whether their policies made us like our enemies, their only response was (and still is) to accuse anyone who questions them of being a terrorist sympathizer or even an outright enemy.

This policy not only distorts true Christianity and corrupts our nation's legacy, it also plays right into the hands of a fundamentalist Islamic radical who similarly, though mistakenly, believes his own faith permits him to use devilish means to achieve heavenly ends."

Some Pigs are More Equal than Others

Here is a comment I left at David Feige's blog, Indefensible. He was the best instructor I had at NCDC and he has a great piece up at Slate on the Mike Nifong disbarment that came out of the Duke Lacrosse fiasco. My comment tells the story of a complaint I read yesterday, which I don't think the prosecutor has even a good faith belief in. I'll talk to her soon, but unless her mind has changed lately, I believe she's alleging things that even she doesn't believe in.

Should prosecutors be able to do that? (If you hesitated, you better ask yourself why our founders created that pesky Bill of Rights)

Just yesterday I read a motion to terminate parental rights which alleged that my client "inflicted upon the juvenile... serious bodily injury." Yet the pros has told me many times that she doesn't believe my client caused these injuries. In fact, her boyfriend is in prison for causing them.

But the prosecutor here does believe my 22-year old client (whose tubes were tied last year) deserves to lose her parental rights for not getting the baby to the hospital quickly enough. So, believing that she's wearing a "white hat", the pros sees no problem alleging something she knows isn't true to be able go after someone she believes wears a "black hat."

The prosecutor (1) thinks my client deserves to lose her kids and (2) knows she has to prove "serious bodily injury" to get there. So what's the problem?

Like many in the Bush administration, some prosecutors tend to equate adherence to the rule of law with support for child abusers (or terrorists) when a person is changed with child abuse. The law is for people like you and me, not for people like Scooter and them.

I'll keep you posted on how it works out, but it's not looking so good. Yesterday I was told, by the child's guardian ad litem, to "do the right thing" by withdrawing my speedy trial motion, even though the right was clearly violated and that they are not offering me anything other than termination of parental rights.

So, they truly believe I should "do the right thing" and withdraw an obviously meritorious motion to dismiss, even when doing so would be per se ineffective assistance.

Don't mean to vent on your blog, but I'm glad someone pointed out that Nifong is the scapegoat and that the practices will continue unabated. Some pigs are, after all, more equal than others."

What do you think?

Judge Walton's Sarcastic Footnote

It was a victory for the Equal Protection Clause today when Judge Reggie Walton denied Scooter Libby's Motion for Bail Pending Appeal today, meaning that Scooter will begin serving his sentence in a few months rather a few years.

What stood out to me, however, was Judge Walton's sarcastic footnote delivered last week, in which he commented on the sudden involvement of 12 prominent law professors, arguing that the grave constituional issues involved required that bail be set. The footnote reads,

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

As background, what Walton was commenting on (and his sarcasm is obvious) is the tactic of having 12 prominent law professors weigh in on this issue, while professing to not be concerned with Scooter but instead purely lending their expertise on the complicated constitutional issues involved. (link to pdf of motion)

But Walton isn't intimidated. He's got Lifetime tenure and he didn't check anything at the door. So he tells them that if the proper application of the Constitution is indeed their motive, he knows they can be counted on, just as quickly, in the future when poor, criminal defendant's case presents an equally compelling issue.

In a week or so, I need to ask for a continuance to submit a brief on a speedy trial issue and think it'll help to bring this up, cautiously, and say "by the way, I know some law professors who might be able to help us out on this, your honor." It probably won't get me anywhere, but I think I have a Walton-like judge who will see the irony and maybe look a little harder at my client's claim, or at least make him laugh a little bit.

Nice to see signs of an independent judiciary, to see some cajones rather than cowardice, in an era of Alitos.

My Thought on 9/11 and its aftermath

David Feige, one of the best instructors at the National Criminal Defense College, runs a blog called Indefensible (he wrote a book with the same name). After reading one of his posts about what it was like to be near "ground zero" that day, I left the following comment:

"Great post, David. It was nice to read a first person account with concrete details like the single loafer, that made it real, even five years later. It sounds crazy, I know, but aside from running to my car to go pick up my daughters from school when they announced that the courthouse was closing, I vividly remember commenting to a fellow public defender that "this will trigger the biggest assault on civil liberties and the Constitution that we've ever seen."

I don't know what made me think of that at that moment. I think it's probably the experiences I've had as a public defender that made me think of the way the Fourth Amendment, that our ancestors fought so hard to achieve and uphold, would continue to become collateral damage in the war on drugs, on crime, and finally on terror.

I probably should have been thinking of something else at that point, and a big part of me just wanted to go home and be safe with my family. But another part of me knew we, as a nation, in our justifiable rage, would probably end up tearing down the sacred documents our country was founded upon in our quest to preserve the "American" way of life, as if it were necessary to tear down the Constitution in order to save it, as Cheney seems to believe.

What really scared me about my comment was my colleague's (also a public defender) response to it: She said, "well, I'd be willing to give up my civil liberties if that's what it takes to be safe." What's scary about that is that public defenders know, probably more than any other profession, the way we must necessarily balance individual rights with the interests of the state and how necessary the exclusionary rule is to ensuring that the police don't overreach and violate the Constitution as they attempt to stop people from violating the law.

My colleague, even though she sees firsthand the way the police will "testi-lie" and justify this as necessary for the "good guys" going after the bad, was still willing to sacrifice liberty for the sake of security. As all public defenders should know, those who make this trade, without even considering the consequences, deserve neither.

And my worst fears were realized. Who would have thought we would seriously debate whether to use torture to extract information, to confront a government that holds prisoners, even U.S. citizens indefinitely as "enemy combatants," that the Attorney General would be threatening to jail journalists for reporting on their government's secret, unconstitutional domestic spying programs, that we would use this day as an excuse to invade a country, unprovoked, to violate the Geneva conventions and alienate the world's empathy while placing tens of thousands of our troops in a quagmire that's killing thousands of them?

Thankfully we're seeing some "pushback" from the judicial branch against a group of neocons who believes in the unitary power the executive branch, and a minimum of pushback from the legislative branch.

But today Time reports that Karl Rove's "hail mary" play to retain power begins, and that the tragic events of 9-11 will be used not only to portray the other party as soft on terror, but to bring members of his own party, who still harbor antiquated ideas about the rule of law or the enforcement of the Constitution, back into line.

I'm fearful of another attack and motivated by the people who so needlessly and violently were murdered that day five years ago. But I'm also worried about where the next five years will take us, and whether that bargain my colleague made in her moment of fear, will continue to cause us to sacrifice the things our country stands for (the rule of law, the Constitution, checks and balances against a tyrant gathering too much power) in the name of making us all feel safer.

Today, rather than watching that fictional propaganda piece the Disney company is providing to the GOP just months before the election, google "Operation Northwoods" and read the recently declassified documents that discuss what bargains an overzealous, fearful military industrial complex was willing to make to motivate the American people into becoming fearful and thus easily manipulated.

As chilling as the events of 9-11 were, consider that the joint chiefs of staff were unanimously willing to murder American citizens in this country to create a climate of fear that would allow us to invade Cuba. Seriously, you can see the documents that verify this online in PDF format.

I'm not insinuating that 9-11 was an inside job, only pointing out that it is documented that the state will at times use the end to justify the means.

The price of liberty is eternal vigilance, and those who are willing to trade this precious, hard-fought freedom for security, (or to allow a small group of men the power to run roughshod over the Constitution and the traditions of this country, limiting liberties here while trying to create democracy abroad at the point of a gun) deserve neither one.

The real test of 9-11 will be the subtle one. The obvious test is whether we will defend ourselves. But the less obvious, subtle test is whether we will unwittingly destroy the American way of life, destroy freedom in this sweet land of liberty, as we hand power over to those who would exploit our fears to enhance their own portfolios and their own grip on power, who would destroy what is good and different about this country in the name of saving it for their gated community neighbors.

A Russian proverb summarizes this idea nicely: "choose your enemies carefully for you will become like them."

John McCain says what got him through torture was his belief that his country was different than that of his captors, that his nation valued something different and unique among nations. What's made us different is our willingness to uphold individual rights and to balance these against the state to keep the state's power sufficiently checked and anti-tyrannical.

Hopefully as a nation we will realize that, more than ever before, our Constitution is under assault, our leaders are hellbent on clinging to power and willing to exploit our fears to accomplish this, and our media not doing its job in educating us about these challenges to our way of life.

It's true that there are enemies out there trying to destroy us and that we need to defend ourselves from them. But it's also true that if we destroy our nation's ideals in the process, they win and we have only ourselves to blame.

Our enemies struck us five years ago, harder than ever before, but it's also true that in the last five years "we have met the enemy and he is us."

Hopefully we can win the War on Terror without killing off what makes us different as a nation.

Hopefully we can defeat our enemies without truly becoming like them in the end..."

Authoritarians at the Gate (updated below)

Today in the news, three items appear that will go virtually unnoticed by most people. Yet these items, and particularly the scant attention any of them will receive by either the public at large or the mainstream media institutions charged with informing them will discuss things like CNN's "top story" about a "tiny terrier saving kids from pit bulls." Here they are...

(1) The Wall Street Journal Editorial Page...

... features an editorial authored by Harvey Mansfield, a William R. Kenan Professor of Government at Harvard (you know that great liberal institution) entitled "The Case for the Strong Executive
Under some circumstances, the rule of law must yield to the need for energy."

Some excerpts:

- "In other circumstances I could see myself defending the rule of law.

- In our time, however, an opinion has sprung up in liberal circles particularly that civil liberties must always be kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural liberties, and are inalienable.

- Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living intelligence of a wise man on the spot, who can judge particular circumstances...

(2) Thomas Sowell's Random Comment that...

- "when I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can't help wondering if the day may yet come when the only thing that can save this country is a military coup." Enough said, right?

(3) This New York Times Headline stating "Administration Pulls Back on Surveillance Agreement"

The first paragraph reads, "Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January. Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants."

Apparently, the Fourth Amendment requirement that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" really means that "when the president does it, it's not illegal."

Lincoln's quote, from the Gettysburg address, about our country being "a nation of laws and not of men" no longer applies.

UPDATE: No, this isn't from the Onion. This is a quote from the President of the United States, you know "the commander guy."

From the White House website transcript of Bush's statement on the War on Terror this morning...

"By the way, in the report it said, it is -- the government may have to put in more troops to be able to get to that position. And that's what we do. We put in more troops to get to a position where we can be in some other place. The question is, who ought to make that decision? The Congress or the commanders? And as you know, my position is clear -- I'm the commander guy."

"Industry Wide" Insurance Practice to Dump Pregnant, Sick?

Will this be in Michael Moore's upcoming "Sicko?"

From today's LA Times...

- "Blue Cross of California "routinely" violated state law when it canceled
individual health insurance coverage after policyholders got pregnant or sick...
according to a state investigation of practices that appear to be industrywide."

- "The state investigation found that Blue Cross used ... a dedicated department
to systematically investigate and cancel the policies of pregnant women and the
chronically ill... Regulators examined 90 randomly selected cases ... out of
about 1,000 a year in California — and found violations in each one."

- (Parent Company) "WellPoint Inc., earned $3.1 billion in profit last year on revenue of $57 billion."

All Pigs are equal, but some pigs are more equal than others

You might recognize that line from Orwell's "Animal Farm" but it pretty much fits a disclosure by the Justice Department's Inspector General yesterday that (according to the Washington Post), "the FBI may have violated the law or government policies as many as 3,000 times since 2003 as agents secretly collected the telephone, bank and credit card records of U.S. citizens and foreign nationals residing here."

In other news, in the Justice Department's "Document Dump" from yesterday, comes news that AZ United States Attorney Paul Charlton, one of the 8 USA's fired last year, wanted to institute a policy of requiring federal agents to tape record or videotape interrogations." Like Jerry Maguire, he was fired shortly after calling for this change.

What's more shocking is the internal memos released yesterday. For example, a June
'06 ATF memo to the DOJ opposing such recording states:

"Law enforcement interrogation techniques (although completely legal) may still be unsettling for some jurors in video and audio form."

Even more shocking, an internal FBI memo, also opposing the AZ USA's desire to record interrogations, states:

"FBI agents have successfully testified to custodial defendants' statements for
generations with only occasional and rarely successful challenges.... as all
experienced investigators and prosecutors know, perfectly lawful and acceptable interrogation techniques do not always come across in recorded fashion to lay persons as a proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may be unfair deceit."

(Interestingly, in the FBI document, someone has handwritten the words "So we
want to hide the truth? Don't want the jury to reach its own judgement?" in the
margin." )

A link to Glenn Greenwald's article on subject, which includes pdf images and
links to the dumped docs, is here. You might have to click through Salon's first screen to get there)

Letter to the Editor re: Fired US Attorneys

Below is a letter I sent to the Omaha World Herald after they ran a highly misleading political cartoon, by the same jackass who drew the one shown below. The cartoon itself isn't available until tomorrow) Since I'm pretty sure The WH won't publish it, here it is...

“It is highly misleading for the World-Herald to show a political cartoon today which depicts former President Clinton, standing beside a chalkboard with 93 tally marks behind him, calling President Bush an “amateur” while only eight tally marks appear behind Bush.

It is true that Clinton did ask for the resignation of all 93 U.S. Attorneys at the beginning of his term, but Bush did the same thing, as did both Reagan and Bush I. This is routine practice. In fact, an internal Justice Department memo written shortly after Bush assumed office (found at http://www.usdoj.gov/opa/pr/2001/March/107ag.htm), states “[c]ontinuing the practice of new administrations, President Bush and the Department of Justice have begun the transition process for most of the 93 United States Attorneys.”

However, while replacing USA’s at the beginning of a President’s first term is routine, what the Bush administration did, in firing 8 prosecutors they had originally appointed, is unprecedented. In fact, an email from Attorney General Gonzalez’ Chief of Staff Kyle Sampson from Jan. 9, 2006 shows that they realized the unprecedented nature of their actions. The memo states “[i]n recent memory during the Clinton and Reagan administrations, [the] President[s] did not seek to remove and replace U.S. attorneys they had appointed whose four-year terms had expired.”

What is alarming about the firing of eight United States Attorneys is that the list included Carol Lam, who had recently indicted Rep. Randall “Duke” Cunningham, R-CA, (currently in federal prison for fraud), and who had also announced her intention to execute search warrants against a Bush appointed CIA agent just days before Gonzalez’ aide Sampson discussed the need to fire her. The list of eight fired prosecutors included those who had indicted prominent Republicans, but also included David Iglesius who, despite being chosen as a trainer for voter fraud related issues by the Justice Department, refused to indict Democrats for voter-fraud related offenses, after Karl Rove publicly called for them. The fact that these firings relate both to prosecutors who indicted Bush supporters and those who refused to indict his opponents, should raise red flags to both anyone who cares about democracy, whether conservative or liberal.

If the eight (out of 93) United States Attorneys were indeed fired because they would not do Karl Rove’s bidding, the real focus of this story should truly shift not to the eight fired prosecutors who refused to “play ball” but rather to the remaining 85 whose “performance” either (1) satisfied Rove and his boss or who (2) received the message that those who don’t play politics with prosecutorial powers are soon looking for other work.

Trivializing this complex and important story about the role of politics in the exercise of the awesome power of the federal government in its prosecutorial (and thus potentially imprisoning and liberty depriving role) by picking up a factually incorrect, highly misleading political cartoon from the wires not only misinforms the public, it also puts the World-Herald in the role of propagandizing Pravda rather than perceptive, government-questioning press. How sad, both for your paper and its readers who depend on you for the truth necessary to be ensure that Lincoln’s dream of a government of, by and “for the people does not perish from the earth.”

UPDATE: The WH responded and asked me to cut it down to 200 words and I sent it in. Still not holding my breath, though.

Update II: The WH didn't publish it, either since it didn't meet their standards of decency or they don't like being compared to Pravda. The cartoon itself has not yet been released, but will be posted shortly.

Nothing More Intractable Than Seeking Death

Over at TalkLeft, Jeralyn Merritt (who's blogging on her own dime from D.C. and needs all the help you can send her) links to a defense lawyer's "Motion to Declare U.S. Attorney's Appointment Unconstitutional" in which he argues that the Bush administration's move to replace Assistant United States Attorneys with party hacks (via a Patriot Act provision that allows for recess appointments) violates his client's rights as well as a federal statute.

[In case you missed it, Paul Krugman accurately observed that the "likely answer" to why this move now "is that for the first time the administration is really worried about where corruption investigations might lead..."]

The motion and attached memo, are accessible via the above link, but I was astonished to read the following comment on the TalkLeft post:

"How does this filing in any, way, shape or manner help the person whose life is at stake in this case? If defendant prevails (doubtful) is there ANY reason to believe the next person will change course and choose not to seek the death penalty or be more amenable to a reasonable plea offer if that is what the defendant is seeking? ... If the defendant loses (quite likely) will this maneuver run the risk of making the prosecution more intractable?"

Iresponded with the following comment:

So we shouldn't pull out all the stops, file every motion in a d.p. case 'cause we don't want to make the prosecution more "intractable?"

How do you get more intractable than death?

Are you concerned they'll also try to kick him when he's dead?

This touches on a great point, for defense lawyers and for Democrats: There are a lot of people who "advocate" that a defense lawyer shouldn't get too uppity else the prosecution get mad and up the ante. There are times, indeed, when heeding this advice is appropriate, but they're rare.

Most of the time the defense lawyer's best tactic is to adopt an attacking defense, akin to what is taught at the NCDC in Macon, GA. This is especially true in a d.p. case, when it's difficult to fathom the pros becoming more intractable, assuming cruel and unusual punishment hasn't, to paraphrase Gonzo, become quaint like his feelings about the Geneva Conventions.

I admire the tactic and wish more defense lawyers, and Democrats, wouldn't suffer from so much Stockholm Syndrome as to worry about what Big Daddy might do if we exercise our rights and fight against death instead of worrying about appearing intractable to a person whose asking permission to kill to punish killing.

Fight them with any means, inside the law, when they want to kill your client."

What do you think?

What effect will the execution videotape have on Iraq?

That is the $64 billion question, but here are a few reactions from people with expertise.

First, Robert Baer, who is a former CIA case officer, author of both "Sleeping with the Devil: How Washington Sold Our Soul For Saudi Crude" and of "See No Evil" the book that eventually became the movie Syriana. In fact, George Clooney plays Baer's character in the movie. Baer has a new op-ed in Time which begins...

"The cat is out of the bag. Thanks to images from a cell phone, we now know that the Iraqi National Police unit we turned Saddam over to was in fact a Shi'a lynch mob."

On the subject of what this means to a future Iraq and the question of the effect of our presence there Baer writes:

"Only time will tell us what Sadr intends do with Iraq if he ever does take over. But the Sunnis today will tell you they don't need to wait. On Saturday, they saw all the evidence they needed: the symbolism of executing Saddam on the Muslim High Holiday of Id al-Adha as a gift to the Shi'a, and and the decision of Maliki to get special approval from Iraq's senior Shi'a clerics, the "marja'iya," to carry out the execution on that day. No one is ever going to take a poll, but it's safe to say that most Sunnis fear that Ayatollah Sadr's dream of an Iraqi Shi'a Islamic republic has already come true."

Second, CBS/AP reports that "After Hussein's burial Monday, rage over the hanging spilled into the streets in many parts of the Sunni Muslim heartland Monday, especially in Samarra where a mob of angry protesters broke the locks off the badly damaged Shiite Golden Dome mosque and marched through carrying a mock coffin and photo of the executed former leader." The article continues:

"Sunni extremists had blown apart the glistening dome on the Shiite holy place 10 months earlier, setting in motion the sectarian slaughter that now grips the troubled land.

The Samarra protest was particularly significant because it signaled a widening expression of defiance among Sunnis, the minority Muslim sect in Iraq that had enjoyed special status and power under Saddam and had oppressed the now-ascendant Shiite majority for centuries."


Third, Professor Juan Cole describes this Sunni protest of the Saddam execution as:

"Folks, this is very bad news. The Askariyah Shrine (it isn't just a mosque) is associated with the Hidden Twelfth Imam, who is expected by Shiites to appear at the end of time to restore the world to justice. (For them, the Imam Mahdi is sort of like the second coming of Christ for Christians). The Muqtada al-Sadr movement is millenarian and believes he will reveal himself at any moment.

The centrality of the cult of the Twelfth Imam, a direct descendant of the Prophet Muhammad who is said to have vanished in 873 AD, helps explain why the bombing of the Golden Dome on February 21 of 2006 set off a frenzy of Shiite, Sadrist attacks on Sunni Arabs. Last February, stuck in a Phoenix hotel because of a missed flight and without an internet connection for my laptop, I blogged from my Treo that it was an apocalyptic day. Sadly, it was, kicking off a frenzy of sectarian violence that has grown each subsequent month.

For Sunni Arabs to parade a symbolic coffin of Saddam through the ruins of the Askariya shrine won't be exactly good for social peace in Iraq. Can't that site be properly guarded or something?

Al-Hayat reports in Arabic that hundreds of demonstrators marched in Dur, near Tikrit on Monday, protesting the execution of Saddam Hussein. Young men carried machine guns and fired them in the air, chanting "Muqtada, you coward," and "Hakim! Yellow-belly! Agent of the Americans!" They unveiled an enormous mosaic of Saddam Hussein inscribed, "The Martry-Hero."

There was also a demonstration in the northern Baghdad district of Adhamiya, at which protesters shouted condemnations of Muqtada al-Sadr, according to al-Zaman. Some of those present at Saddam's execution shouted "Muqtada, Muqtada, Muqtada!" Saddam mocked them, asking if this was their sign of manliness. (Personally, I believe this is Saddam's reference to rumors in Iraq that Muqtada's wife left him, saying that he is actually gay. He is saying that chanting Muqtada's name is a sign that they are also not real men.)"

(To get to Cole's comment, scroll down to the "Tuesday, Jan. 2" entry)

Bottom Line: If Baer is correct that "most Sunnis fear that Ayatollah Sadr's dream of an Iraqi Shi'a Islamic republic has already come true" and Cole is correct that the Sunni break-in/ coffin protest at the "badly damaged Shiite Golden Dome mosque" is "very bad news" and not "exactly good for social peace in Iraq," where do we really stand in Iraq? And what will the future look like?

Is there any hope of "victory" for an occupying power in the midst of this current and potentially worse future bloodshed? Of course, to the right, the answer is simple. The killing is not a sign of failure but a reason for hope. As Dean Barnett puts it, on Hugh Hewitt's blog, in a post entitled "A Moment of Savagery - Now a New Hope?:"

"The only answer, as it always has been, is to stamp out that savagery ferociously and totally. At the end of this war, Iraq must necessarily be composed of people who always wanted to live in peace and the one-time enemies of peace who have come to realize they have no other choice but to live in peace. How much killing will this take? That will depend on how many enemies of peace there are and how determined they are to live in a state of war."

In other words, we are assisting in killing off the "bad" Iraqis, even though 1 in 20, at least, has now been killed. Just a little more progress, Barnett believes, and the good Iraqis, the ones who want to live in peace, will be left and the mission will be accomplished.

Amazingly, Barnett concludes his paragraph above with this prediction:

"One thing's for certain - the more resolute we are, the less killing there will be."

We have a President who just recently dropped the theme of "stay the course" and now, when 1 in 20 Iraqis is dead in the post Saddam era, after the "liberation" if we just stay "resolute" Barnett somehow has the gall to predict that the killing will stop.

Barnett then concludes his piece with these words about the "best news" coming out of Iraq:

"The best news of the past few days actually wasn’t Saddam’s execution, even though Saddam facing justice (in spite of the primitive savagery of the execution itself) is something that every American can feel proud of. The even better news than Saddam’s death is that (according to the reliable Strategy Page), American and Iraqi forces have begun to make war on the Sadr militia."

The worse the news is, the more it is spun as "progress" by the increasingly isolated Bush cabal. One in 20 is already dead after the "liberation" and U.S. forces now attacking the Shiite leader's militia is considered "good news."

Kurt Vonnegut described the Decider playing with U.S. forces like a rich kid playing with toy soldiers. While the analogy is fitting, the killings are real and the future for Iraq, and our forces, is bleak and bloody.

Who will be the last to die for Bush's mistake?

Top Ten Lists

The end of the year always brings about top ten lists about the past year, but here are a couple you might have missed...

First, on the question of "Is the U.S. becoming a police state?" comes this top ten list (from Alternet). Here are the topics, some of which surprised me. See the article for more details/explanations.

1. The Internet Clampdown
2. "The Long War"
3. The USA PATRIOT Act
4. Prison Camps
5. Touchscreen Voting Machines
6. Signing Statements
7. Warrantless Wiretapping
8. Free Speech Zones
9. High-ranking Whistleblowers
10. The CIA Shakeup

And here is Juan Cole's "Top Ten Myths about Iraq 2006" The first line is pretty ominous: "Myth number one is that the United States "can still win" in Iraq." Here are the top ten myths, according to Professor Cole:

1. Myth number one is that the United States "can still win" in Iraq.
2. US military sweeps of neighborhoods can drive the guerrillas out.
3. The United States is best off throwing all its support behind the Iraqi Shiites.
4. Iraq is not in a civil war," as Jurassic conservative Fox commentator Bill O'Reilly insists.
5. The second Lancet study showing 600,000 excess deaths from political and criminal violence since the US invasion is somehow flawed.
6. Most deaths in Iraq are from bombings." (The Lancet study found the majority of violent deaths are from being shot.)
7. Baghdad and environs are especially violent but the death rate is lower in the rest of the country.
8. Iraq is the central front in the war on terror." (From the beginning of history until 2003 there had never been a suicide bombing in Iraq. There was no al-Qaeda in Baath-ruled Iraq)
9. The Sunni Arab guerrillas in places like Ramadi will follow the US home to the American mainland and commit terrorism if we leave Iraq." This assertion is just a variation on the invalid domino theory. (People in Ramadi only have one beef with the United States. Its troops are going through their wives' underwear
10. Setting a timetable for withdrawal from Iraq is a bad idea.

Justice Dept. Refuses Senator's Requests for Docs on Detainee Treatment

From yesterday's L.A. Times:

"Setting up what could become the first showdown between the Bush administration and the new Democratic Congress, the Justice Department has refused to turn over two secret documents, describing the CIA's detention and interrogation policies for suspected terrorists, to the incoming chairman of the Senate Judiciary Committee."

Senator Leahy "waited until the week that Democrats take control of Congress to release — and denounce — the response" after sending the letter to DOJ during the congressional recess. Predictably, the DOJ responded that:

"Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them," wrote James H. Clinger, acting assistant attorney general for legislative affairs. "We must avoid assisting their effort... Clinger said the department had already briefed members of the Senate and House intelligence panels about aspects of the anti-terrorism programs, fulfilling its obligations under the law."

Also, the FBI released documents regarding detainee treatment yesterday in response to an ACLU Freedom of Information Act Request. You can read the ACLU's response here and view the documents themselves here.

The ACLU describes the documents as including "some new accounts of abuse related to the detainees' religious beliefs:"

- Investigators wrapped a detainee's head in duct tape "because he would not stop quoting the Koran."
- Another agent said an interrogator bragged about making a detainee listen to "satanic black metal music for hours and hours."
- According to the same report, the interrogator later "dressed as a Catholic Priest and baptized the detainee in order to save him."
- In another incident observed by an FBI agent, a Marine captain squatted over the Koran during an interrogation of a Muslim prisoner, which the prisoner found extremely offensive."

Making enemies faster than we can kill them.

UPDATE: Marty Lederman, at Balkinization, writes an excellent analysis of possible DOJ justifications for refusing Leahy's request. He writes:

"The principal dispute here concerns whether it is appropriate for such legal advice to be "non-public" in the first instance. I tend to think that, except in narrow circumstances, OLC advice that certain Executive conduct is lawful ought to be made public--not least because it will help ensure that such advice is well-considered and that possible counter-arguments have been adequately anticipated and addressed. (See Principle No. 6, here.) Others disagree, principally for the reasons stated in the DOJ letter--namely, that if OLC advice will presumptively be public, the substance of that advice will be less candid, and officials will be less likely to seek it in the first place. I think these concerns are greatly overstated, and that when OLC is working as it ought to, its lawyers will be willing to provide very candid and honest legal advice, even knowing -- indeed, because -- such legal analysis will be subject to public scrutiny. But I understand that thoughtful OLC alums sincerely disagree on this point. It's a topic worthy of further debate.

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch's views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are."