Monday, June 29, 2009

Conservatives, Libertarians, Objectivists and Patriots In The Supreme Court

In my June 16, 2009 essay--"How To Be A Friend Of The Court In The Supreme Court"--I ended with the comments that: "I continue to marvel at the disinterest in filing amicus curiae briefs shown by organizations with a stake in Supreme Court decisions. Especially when one considers the time, cost and groveling required in the mostly unproductive attempt to lobby legislators. Just look at some of the cases the Court has already agreed to review in its October 2009 Term, which begins in October, let alone those yet to be accepted."

That opened the Pandora's Box of just what are "some of the cases the Court has already agreed to review in its October 2009 Term, which begins in October . . . ." (As of Monday, June 29, 2009, 38 cases have been accepted for review.) "Some cases," that is, which should be of interest to Conservatives, Libertarians, Objectivists and Patriots.

Here are just five examples:

Maryland v. Shatzer, Sr. A Supreme Court decision prohibits police officers from starting to question a suspect after she says she wants a lawyer. Should that rule be followed in a later interrogation that occurs some three years afterwards?

I'm sure you see the obvious implications for law enforcement.

Three amicus curiae briefs have been submitted supporting the government.

One--from the National Association of Criminal Defense Lawyers--has been submitted, of course, supporting the criminal.

Graham v. Florida. The Eighth Amendment prohibits "cruel and unusual punishment. The question in this case is whether a life sentence (with no possibility of parole) can be imposed on a juvenile if the crime committed was not a homicide.

Sullivan v. Florida. Another Eighth Amendment case. A 13-year-old was sentenced to life (without possibility of parole) in a non-homicide case--a sentence infrequently rendered, apparently because "society" deems children less culpable than adults.

Stop the Beach Renourishment, Inc. v. Florida Departmen of Environmental Protection. Florida enacted legislation for the purpose of rescuing ocean- and lake-front shorelines. As a result, the previous boundaries of private property were altered. The question here is does the legislation constitute a "taking" of private property with appropriate compensation.

The Pacific Legal Foundation has submitted an amicus curiae brief supporting the property owners.

United States v. Comstock. A federal statute provides for a court to civilly commit federal criminal prisoners near release who are deemed to be sexually dangerous and also such persons who are incarcerated due to a finding of incompetence to be tried. The question is whether Congress had the power to enact that statute.

Before the Supreme Court's 2009 Term (October 1, 2009--September 30, 2010) is over, at least another 30 cases will be accepted for review, and surely some of them should be of interest to conservatives, libertarians, objectivists and patriots.

As they are reported, I will mention some of them here.

Sunday, June 28, 2009

Saturday, June 20, 2009

Father's Day Essay, by Erika Holzer


By Erika Holzer

As I read the papers and listen to the news on this approaching Father’s Day 2009, I’ve found myself thinking about how my late father would have felt at what appears to be happening to the country he loved so dearly.

Terrorists mass murdering Americans on our own soil. An American president bowing to a medieval monarch, apologizing for our nation’s greatness, selling out a loyal ally. All this, and more, would have been seen through the eyes of my father.

He would have cried.

You see, my dad was a patriot.

Not the kind who would ever have seen Memorial Day as just another day for picnics and barbecues. But the kind who knew his origins, worked hard to achieve the American dream, and loved this country.

As was typical of many immigrants of his day, my father, whose family had known real poverty, believed fiercely in that dream and the patriotism necessary to sustain it.

So fiercely, I might add, that he went to considerable lengths to disguise the fact that he was an immigrant. We kids grew up thinking he’d been born in our small town in upstate New York.

But as we got older and picked up on hints from our mother, he countered our skepticism with the romantic notion that he’d been born on a ship en route from Italy to Manhattan’s Ellis Island! It wasn’t until we reached young adulthood that he sheepishly confessed he’d been born in a small village slightly south of Naples—but was quick to add, jokingly, that he’d set sail at the impressionable age of two and as they’d reached their destination he had felt distinctly American-born in spirit, if not in technical fact.

I was still in high school when my dad told me how deeply troubled he’d been when, upon the death of his widowed father, his older brother Fred, self-appointed patriarch of the family, had changed the surname of his younger siblings from Tata to Tate. My dad had been raised as an Italian-American, and despite considerable prejudice in certain circles, he’d taken great pride in his family name. My canny Uncle Fred, who regarded his ethnicity as a stumbling block to his ambitions, had won my father over by arguing that Frank “Tate” as opposed to Frank “Tata” would make him more assimilated. More American! A winning argument.

Which is not to say that my father was any the less ambitious than his older brother. An ardent devotee of upbeat aphorisms and self-improvement advice, he believed wholeheartedly that we are what we make of ourselves despite the humblest of beginnings.

And my dad’s beginnings were humble indeed. To this day I can close my eyes and see the main room of the house where my dad grew up: a basement dining room- kitchen with a dirt floor, presided over by his stepmother—a smiling toothless old woman who spoke softly in Italian as she slipped a shiny new dime or a piece of candy into my hand. And while I have no first-hand knowledge of my dad’s actual beginnings, my brothers once made a pilgrimage to the village where he was born, managed to locate some blood relatives . . . and were treated with warm hospitality by people who lived in the same dirt-poor poverty from which my father had come.

The possibilities that this free country offered were something my father saw as available to all. He struggled to put himself (and later, two younger brothers) through law school, then sent his kid sister through nursing school. You can imagine how proud he was on the day he opened his law firm on Main Street and hung out his “shingle”:


He could have added, “American.”

How proud he was that, though a single practitioner, he was soon earning enough to raise a family in a comfortable suburban home on a dead-end street that bordered the Hudson River, with lawn enough for gardens and bocce ball. How proud he was that he could afford to educate his children, all four of whom went on to earn, not just college diplomas, but advanced degrees—three of us in law.

And how grateful that America had given him the opportunity to achieve all this.

The only part of my father’s love of America that proved frustrating was his strict rule that Italian was not to be spoken in our home. It’s the kind of rule that leaves a child, a teenager, perhaps even a carefree college student, indifferent. But once I pursued a career—as a lawyer first, then as a novelist—I had serious misgivings about having missed out on an unrepeatable opportunity to be bilingual. I thought my father’s reasoning had been singularly obtuse—until I realized that my patriotic dad believed it was un-American not to speak English.

My father was a vibrant 96 years old when he died.

Fourteen years earlier, I wrote a nationally syndicated column about Frank A. Tate entitled “82 Going on 22.” In it, I paid tribute not just to his ongoing can-do, earn-your-own-way approach to life, but also to his unabashed love for his country. To him, America was the personification of opportunity and, more important, of freedom.

Now, even though he has been gone more than a decade, I think of him often, especially on Father’s day.

Were he still with me, I know what he’d say when confronted with today’s worsening headlines: “This is America, anything is possible—so long as we don’t let the torch go out.”

Happy Father’s Day, dad.
Lawyer-turned-novelist Erika Holzer's novel Double Crossing is a human rights espionage drama. Her psychological thriller Eye for an Eye is a Paramount feature starring Kiefer Sutherland and Sally Field, To learn more about Holzer's latest book, the memoir "Ayn Rand: My Fiction-Writing Teacher," see, Erika Holzer blogs at

Friday, June 19, 2009

Miranda Goes To War (Part III: From Arizona to Afghanistan)

I concluded Part II of this series with a question: Whether Miranda is strong enough to support its present incarnation in the wilds of foreign lands when applied to the very different world of irregular fighters, Islamic guerillas, and enemy combatants engaged in jihad against the United States.

To answer this question we have to examine the seeds Miranda has sown.

Is Miranda still good law?

Beginning immediately after the decision was rendered in 1966, it was subject to withering attacks. Among them, as Justice Harlan had said in dissent, was that Miranda was simply “poor constitutional law.” For example, it was argued that the decision was not really constitutional law at all, but merely a rule of evidence which could be overridden by an act of Congress—especially 18 United States Code Section 3501, enacted by Congress in the wake of Miranda, which reestablished “voluntariness” as the touchstone of a custodial statement’s admissibility.

This argument was tested in the late 1990s, when the United States Court of Appeals for the Fourth Circuit ruled in United States v. Dickerson that the test of an interrogation-produced statement was “voluntariness,” of which Miranda warnings were but one element.

The Supreme Court took the case, and ruled in Dickerson v. United States, 530 U.S. 428 (2000), that Section 3501 could not trump the Miranda ruling, and that the absence of warnings excludes an interrogation-produced statement.

Miranda is very much the law of the land.

Are Miranda warnings being given outside the United States

Stephen F. Hayes reported in the June 22, 2009 edition of The Weekly Standard that:

. . . according to Representative Mike Rogers, a Republican from Michigan and a senior member of the House Intelligence Committee . . . the FBI has been reading Miranda rights to high-value detainees at U.S. detention facilities in Afghanistan. Rogers, a former FBI special agent and U.S. Army officer, interviewed interrogators at those detention facilities on a factfinding trip he took to Afghanistan in late May.

Officials from intelligence and law enforcement agencies explained to Rogers that they had been told to read high-value detainees their Miranda rights.

On June 9, 2009 the Department of Justice (DOJ) confirmed the practice.

Some “detainees” (think Taliban, alQaeda, guerillas, irregulars, enemy combatants; think rapists murderers, killers, terrorists) are being Mirandized.

Why are Miranda warnings being given outside the United States?

According to Mr. Hayes, in mid-June an Obama-administration DOJ spokesman made several statements about the practice. First, several Mirandizings occurred in Afghanistan “before January 20, 2009” (think “Bush did it!”). The spokesman continued: “The determination whether to Mirandize a terrorism detainee is made strictly on a case-by-case basis by career [FBI?] agents and prosecutors, in consultation with other relevant agencies. If, based on that consultation, it appears that national security may best be served by prosecuting that detainee, or at least preserving the prosecution option, the detainee may be Mirandized to ensure that his/her statements are admissible at trial and that the detainee can be brought to justice.”

It boggles the mind how “national security may best be served” by inserting war fighters, admitted by DOJ to be “terrorists,” into our domestic criminal justice system, rather than incarcerating them as enemy combatants until the end of hostilities—a practice approved even by the current Supreme Court.

But inserting terrorists into our federal criminal courts—along with mafia soldiers, corporate executives, wire fraudsters, and the likes of Martha Stewart—is entirely consistent with Obama’s and his cohort’s weak-kneed, conciliatory approach to terrorism, viewing it as merely a criminal pastime.

Miranda warnings are being given to terrorists because Obama and most Democrats (and some Republicans) see them not as terrorists, but rather as run-of-the-mill criminals—and after all, the Supreme Court requires those folks to be Mirandized.

Will this Miranda-on-steroids cease?

In a word, “no.”

You’ll recall that in the cases I’ve examined in this essay, objections to the non-Mirandized statements were made by the defendants and opposed by the government. There were two sides.

Now, however, there is only one: the terrorists who want to be Mirandized and the government who wants them Mirandized. There is no one to complain.

And even if someone did complain in a legal forum, as to the Supreme Court putting an end to this self-destruction remember the 2000 Dickerson decision not only reaffirming Miranda but constitutionalizing the rule it promulgated. Remember also that Justice Kennedy, who has not been stalwart enough in national security cases, is still on that bench. And remember we’re watching the ascension to the Supreme Court of either Sonia Sotomayor or a reasonable facsimile.

How about the voters making a stand? Apart from there being no congressional elections for another eighteen months and no presidential election until November 2012, there’s what Michael Barone recently referred to as “the sloppy over-generosity of the American people. Except when aroused and alert, we have a tendency to be fat, dumb and happy, and want to spread that happiness around. So, hey, let’s give these detainees more rights than they’re entitled to under the Geneva Conventions. It’ll make us feel generous, and maybe it will make them like us.” (Jewish World Review, June 16, 2009.)

When we do—and we’re well on our way to doing just that—having sowed the wind, we shall surely reap the whirlwind.

Thursday, June 18, 2009

Miranda Goes To War (Part II: The Supreme Court Opinions)

To set the stage for the revolution in the American criminal justice system Warren and his four colleagues were about to launch with their decision in Miranda v. Arizona, excluding from evidence confessions given without specific warnings, the Chief Justice began his opinion by solemnly observing that:

The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. (My emphasis.)

Thus, because Warren was constrained by the facts of each of the four cases before the Court, the Chief Justice’s opening paragraph left no doubt that his forthcoming opinion was necessarily limited to establishing a constitutional rule applicable only to domestic crimes committed by American citizens in the United States.

Under the facts of those four cases it was jurisprudentially impossible for the Court’s decision to have any extraterritorial application—let alone to irregular fighters, Islamic guerillas, or enemy combatants engaged in jihad against the United States in places thousands of miles from our shores where there were no Arizona police, California prosecutors or a system of “American criminal jurisprudence.”

Warren next turned to a case it had decided two years earlier, Escobedo v. Illinois, in which the Court had held constitutionally inadmissible statements made during custodial interrogation by a suspect who had expressly requested, but was expressly denied by the police, an opportunity to consult counsel.

Note that all this occurred in Illinois with an American suspect and local police, not in Kabul with a Taliban prisoner and NATO soldiers.

In Escobedo the suspect had not only requested a lawyer, but a retained attorney had actually appeared at the police station and was prevented from seeing his client—a very different factual situation from the Miranda quartet of cases where there were no requests for lawyers and none had appeared during the interrogations.

This significant factual difference—request for, and presence of, counsel in Escobedo, but neither in the Miranda quartet and merely a failure to inform in three of the cases—required a long stretch for Warren to get where he wanted to go.

How was his Miranda majority going to construct a bridge from the request/denial in Escobedo to the constitutionally required affirmative duty to warn in the Miranda quartet?

Warren’s answer—for himself, Black, Douglas, Brennan and Fortas (Clark, Harlan, Stewart and White dissented)—is contained in some sixty pages of the official reports of opinions of the Supreme Court. It is a waste of ink and paper.

Lacking controlling precedent, Warren fell back on a recitation of police abuse horror stories, a reiteration of Escobedo, a sympathetic nod to the needs of law enforcement, and broad and often grandiose statements from constitutional history and inapplicable cases. In other words, Warren was backing and filling.

But even then, nothing in the legislation he wrote for himself and his four colleagues (and the country) in his wide-ranging, mostly irrelevant rambling disquisition remotely suggested there could be extraterritorial application of the new “constitutional” requirements, which were:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. * * * Prior to any questioning, the person must be warned that he has a right to remain silent that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. (My emphasis.)

The italicized words “prosecution,” “defendant,” “procedural safeguards” and “police,” make it obvious that the person being interrogated is in the American criminal justice system. He is not in a remote cave in a remote part of a remote village in a remote country in a remote part of the world.

Yet even the domestic application of Miranda’s majority ruling was too much for the four dissenters. Their opposition to the majority’s newly-discovered constitutional right has important implications for the bizarre notion that Miranda’s reach is today extraterritorial.

Justice Clark, a former attorney general of the United States, recognized that the newly-announced “Miranda Rule” “has no support in our cases.” Instead, he proposed the more rational rule that “[i]n the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that in the totality of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary.”

Though Clark dissented from the creation of the newly-found constitutional right, he shared with the majority the necessary understanding that, given the limitations of the facts in the four cases before them, the Court was dealing with cases of domestic crime in the American criminal justice system, not some utopian notion of fairness to irregular fighters, Islamic guerillas, or enemy combatants engaged in jihad against the United States in backwaters thousands of miles from our shores.

In Justice Harlan’s dissenting opinion, for himself and for Stewart and White, we see an observation that today appears clairvoyant: “I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell.” (My emphasis.)

The time is now. The consequences are unimaginable.

Although Harlan would go on to develop his observation by discussing the Miranda Rule’s impact on law enforcement, his arguments are even more applicable to the extraterritoriality now being given to the Miranda Rule.

Harlan begins by characterizing the new rule’s aim as being “toward ‘voluntariness’ in a utopian sense, or to view it from a different angle, voluntariness with a vengeance.”

He then demonstrated that the majority was inventing a new constitutional “right.”

More important for our purposes, Harlan launched a reasoned attack on the policy choice Warren and his four colleagues—judges not legislators—had just imposed on the police and citizens of the United States, stating that “[e]xamined as an expression of public policy, the Court’s new regime proves so dubious that there can be no due compensation for its weakness in constitutional law.”

He continued:

. . . precedent reveals that the Fourteenth Amendment in practice has been construed to strike a different balance, that the Fifth Amendment gives the Court [majority] little solid support in this context . . . . Legal history has been stretched before to satisfy deep needs of society. In this instance, however, the Court has not and cannot make the powerful showing that its new rules are plainly desirable in the context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and imposed on every State and county in the land.

If Harlan, joined by Stewart and White, found unacceptable the majority’s pro-suspect, anti-police/society policy choice, just imagine their reaction if they twere told that the Miranda benefits would be bestowed on Taliban fighters in Afghanistan minutes after they killed American troops.

To merely state this proposition is to reveal its utter insanity.

Although Justice White had joined Harlan’s dissent, he wrote one of his own. Like Harlan, White recognized that “[t]he proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment.”

It that be true, and it certainly was, then five members of the Supreme Court of the United States, over the dissents of four colleagues, foisted a non-constitutional invented “right” upon not only the people of this country but today’s military forces who are in harm's way because they are charged with defending us.

Warren’s bridge was not constructed with reason and precedent, but with slogans and sleight-of-hand. As such, it should not have been able to support even the Miranda Rule.

But it has.

The next question is whether it is strong enough to support its present incarnation in the wilds of foreign lands when applied to the very different world of irregular fighters, Islamic guerillas, and enemy combatants engaged in jihad against the United States.

To be continued……………………….

Wednesday, June 17, 2009

Miranda Goes To War (Part I: Context)

In the June 15, 16 and 17, 2009 National Review Online Andrew C. McCarthy has written a devastating three-part essay “Obama Goes to Court.” In that series, Mr. McCarthy—a former federal prosecutor, and one of a handful of lawyers writing knowledgeably today about the legal aspects of national security—has provided a brilliantly cogent exegesis of how the Supreme Court’s forty-three-year-old Miranda decision has been used and misused by the courts and executive branch to seriously jeopardize America’s national security.

In Part I of his essay, Mr. McCarthy writes that:

[The] Miranda [decision] is a concoction of bad law and bad policy. Its criminal protections are sheer judicial inventions. Nothing in the Constitution mandates them. The Fifth Amendment forbids police to coerce a suspect’s confession; it does not require police to tell the suspect that his confession may not be compelled, nor does it impose a publicly funded lawyer to shield the suspect from interrogation. Thanks to Miranda, however, a guilty suspect who has not been forced to speak can get his voluntary confession judicially suppressed—no matter how heinous the crime—if the police, though they’ve honored his rights, have failed to tell him about those rights. (Emphasis in original.)

How did this happen? How was the Warren Court in 1966 able to invent a “constitutional” right for a kidnapper/rapist (and three other criminals), which in the Twenty-First Century seriously jeopardizes America’s national security?

To answer that question, I have to dissect the Supreme Court’s Miranda opinion.

There were nine members of the Court: Chief Justice Earl Warren and Associate Justices Hugo L. Black, William O. Douglas, Tom C. Clark, John M. Harlan, William J. Brennan, Jr., Potter Stewart, Byron R. White and Abe Fortas.

The “Miranda case” was actually four cases which had been consolidated by the Court for decision: Miranda v. Arizona, Vignera v. New York, Westover v. United States and California v. Stewart. (Had the opinion listed the New York case first, for all these years police would have been Vignera-izing suspects.)

Miranda v. Arizona. Ernesto A. Miranda was arrested at his home, taken to a police station, identified by his kidnapping/rape victim, questioned by two officers, and within two hours confessed in writing. Miranda’s statement contained a paragraph acknowledging that the confession was voluntary, that no threats were made and “with full knowledge of my legal rights, understanding that any statement I make may be used against me.”

Miranda had not requested a lawyer, nor did the police officers advise him that he had the then non-existent right to have one present.

At trial, the confession was admitted in evidence, Miranda was convicted of kidnapping and rape, and sentenced to 20 to 30 years imprisonment.

The Supreme Court reversed. Miranda “was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. The mere fact that he signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights’ does not approach the knowing and intelligent waiver required to relinquish constitutional rights.”

Vignera v. New York. The defendant was picked up in connection with a dress shop robbery three days earlier, and taken first to the Detective Squad headquarters and then to a specific squad. At the squad, he orally confessed, and was identified by the storeowner and a saleslady. He was then taken to a precinct station and later questioned by an ADA with a transcript made of the questions and answers.

No “rights” were read to Vignera.

His oral confession was admitted in evidence at his trial, where he was convicted of first degree robbery and sentenced as a third-felony offender to 30 to 60 years imprisonment.

The Supreme Court reversed.

“Vignera was not warned of any of his rights before the questioning by the detective and by the assistant district attorney. No other steps were taken to protect those rights. Thus he was not effectively apprised of his Fifth Amendment privilege or of his right to have counsel present . . . .”

Westover v. United States. Westover was arrested as a suspect in two robberies in Kansas City, and on a felony warrant from California relating to two bank robberies. Following a police station line-up he was booked. Westover was then interrogated by the local police and later by the FBI, to whom he confessed in two signed statements to the two bank robberies.

The statements were admitted at his federal trial for the California robberies, Westover was convicted of both, and sentenced to 15 years imprisonment.

At the trial, “one of the [FBI] agents testified, and a paragraph on each of the statements states, that any statement he [Westover] made could be used against him, and that he had the right to see an attorney.”

No matter. The Supreme Court reversed.

“Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westover’s point of view the warnings came at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed.”

California v. Stewart. Arrested in connection with purse-snatching robberies in which one victim died, Stewart was held for five days and interrogated nine times. During session nine, Stewart confessed to robbing the deceased. The record was silent about whether “rights” were read to Stewart.

He was convicted of robbery and first-degree murder, and sentenced to die.

The Supreme Court of California reversed.

“It held,” said Warren’s opinion for the Supreme Court of the United States which agreed with the Supreme Court of California, “that under this Court’s decision in Escobedo v. Illinois, Stewart should have been advised of his right to counsel and that it would not presume in the face of a silent record that the police advised Stewart of his rights.”

Before I turn to Escobedo and the other justifications Warren and four of his colleagues used to distort the meaning of the Fifth Amendment’s Self-incrimination Clause, it’s necessary to underscore crucially important facts about these four cases because, as Andrew McCarthy reports, it has become official United States government policy to Mirandize guerilla fighters captured on foreign battlefields.

Where? The Miranda and three other interrogations were conducted within the territory of the United States of America, not in a war zone on the other side of the world.

Who? The Miranda and three other interrogations were conducted of American civilians believed to have committed crimes, not irregular guerilla fighters belonging to no foreign army or state.

By whom? The Miranda and three other interrogations were conducted by domestic civilian police (and a prosecutor), not the military or CIA.

Why? The Miranda and three other interrogations were conducted to obtain confessions of domestic crime, not actionable foreign tactical and strategic intelligence.

Offense? The Miranda and three other interrogations’ fruits were used against kidnappers, rapists, robbers and killers, not irregular military forces (“enemy combatants,” if you will).

Kind of proceedings? The Miranda and three other interrogations were used in civilian criminal prosecutions, where there were judges, juries, due process, presumptions of innocence, proof beyond a reasonable doubt, and the need for jury unanimity, not to justify detention of enemy combatants or otherwise for use against them in a war.

Interrogators’ status? The Miranda and three other interrogations were conducted by justice-system representatives, not by military and paramilitary personnel in the field.

Authority? The Miranda and three other interrogations were instigated at the behest of sovereign political entities, three states and the federal government, not by soldiers or special operators.

In sum, the Miranda, Vignera, Westover and Stewart cases were, apart from their impact on our criminal justice system and the Fifth Amendment, garden-variety domestic criminal cases involving confessions, all handled in conformity with existing constitutional law.

The principal precedent upon which Warren, Black, Douglas, Brennan and Fortas relied in their rewriting of the Self-Incrimination Clause, Escobedo v. Illinois, was no different. Neither it, nor the four Miranda cases which relied on Escobedo, had anything in fact or fancy to do with enemy combatants captured in a war on battlefields halfway around the world.

To be continued ……………………………..

Tuesday, June 16, 2009

How To Be A "Friend-of-the Court" in the Supreme Court

Because of two of my recent blogs--"Fingers Needed for Crumbling Dike" and "Amicus Curiae Brief in United States v. Stevens"--I have been asked to explain exactly how one can file a "friend-of-the-court" brief in the Supreme Court of the United States.

The short answer is, "easily."

Supreme Court Rule 37. "Brief for an Amicus Curiae," provides that "1. An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored."

There are two ways to accomplish filing a "friend-of-the-court" brief.

One is by obtaining the consent of the parties. In our recently filed amicus curiae brief in United States v. Stevens, the government is represented by the Solicitor General's office of the Department of Justice. As it invariably does, it filed with the clerk of the Court a blanket permission for amicus curiae briefs to be filed. Stevens is represented by a prominent Washington, DC, law firm which specializes in Supreme Court cases. It, too, filed a blanket permission, which is the customary collegial practice.

If one party to the case declines to grant permission, a prospective amicus curiae may ask the Court for permission, and attach to the application a copy of the proposed brief--which, of course, does put it before the Court even without a party's permission or the application being granted.

This said, I continue to marvel at the disinterest in filing amicus curiae briefs shown by organizations with a stake in Supreme Court decisions. Especially when one considers the time, cost and groveling required in the mostly unproductive attempt to lobby legislators.

Just look at some of the cases the Court has already agreed to review in its October 2009 Term, which begins in October, let alone those yet to be accepted.

Saturday, June 13, 2009

Amicus Curiae Brief in United States v. Stevens

Below, you will find the link to an amicus curiae (“friend-of-the-court”) brief a colleague and I recently submitted to the Supreme Court of the United States in United States v. Stevens.

The Supreme Court agreed to review the Stevens case because a lower federal appeals court held unconstitutional the federal statute (18 U.S.C. Section 48) criminalizing the making, selling or possessing depictions of “crush videos” and other torture and killing of animals.

Our brief was in support of the government. It argues, in effect, that the statute is constitutional no matter which of our four arguments is accepted.

The basic issue presented to the Supreme Court by the Stevens case is whether the federal statute is constitutional.

For non-lawyers, and even for some unfamiliar with constitutional law and the task of the Supreme Court, portions of the brief may be difficult to understand.

I have two suggestions.

First, read the brief in this order: Summary of Argument (pages 2-3); Introduction (pages 3-7); Point III (pages 16-26); Point IV (pages 26-34); Conclusion (pages 34-36); Point I (pages 7-12); Point II (pages 12-16); Interest of Amicus Curiae (unnumbered page 1).

Second, ask a lawyer of your acquaintance to explain the more technical legal aspects.

Tuesday, June 9, 2009

Sotomayor: Only Part of Obama's Wicked Scheme for the Supreme Court (Part II)

Franklin Delano Roosevelt was elected President of the United States November 8, 1932, and America would never be the same. It’s well known that, for example, within days of taking office he closed the banks and then illegalized and confiscated private gold (see and “How Americans Lost the Right to Own Gold, and Became Criminals in the Process,” by Henry Mark Holzer: ).

Less well known by modern generations is that FDR tried to rig the Supreme Court of the United States, and virtually unknown today is what caused the attempt.*

There is a rich and plentiful history about that period in America, and no mere summary can do it justice. But a sketch of what happened in the 1930s is necessary for an understanding of FDR’s Machiavellian scheme and what Obama might do.

By November 8, 1932 voters had their bellies full of, if not victuals, then of Herbert Hoover and the Republicans. Wall Street crashed in 1929, employment had fallen drastically, breadlines and soup kitchens abounded, Hoover’s response to the financial crisis was not working.

Roosevelt, the Brahmin governor of New York charged into office carrying the banner of an economic “New Deal” for the American people. With FDR came a Democrat majority in the House and Senate.

Promising to ingest more of the poison that had caused the disease, the new President and his legislative cohort sought even more government involvement in the economy as a cure for what ailed the country.

Dozens of new laws were enacted during FDR’s early days in office.

One of them, enacted in 1933, was the “National Industrial Recovery Act,” which allowed the President to regulate the oil industry. Panama Refining Co. and Amazon Refining Co. sued, claiming that Congress had no power to pass the law and had improperly delegated its legislative power to the President.

Two years later, in January 1935, in the case of Panama Refining Co. v. Ryan, the Supreme Court agreed, declaring a portion of the statute unconstitutional.

In May 1935 the government lost Railroad Retirement Board v. Alton Railroad Co. to a 5-4 vote, with Associate Justice Owen J. Roberts decrying the statute’s “naked appropriation of private property” and its taking of the property “of one and bestowing it upon another.”

Three weeks later, a trio of decisions drove yet more nails into the coffin of the New Deal’s economic policies. In one, FDR had acted outside of his authority. In another, private property had been taken by the government by shifting creditors’ property to their debtors. In the third, the Court declared FDR’s baby, the NRA, unconstitutional in its entirety.

Franklin Delano Roosevelt, a politician used to having things his way, was not pleased.

Nor was he pleased in January 1936 when the Court, with Roberts again writing the opinion for a divided Court, held the severely regulatory Agriculture Adjustment Act unconstitutional.

In May 1936 the Bituminous Coal Conservation Act followed the Railroad Retirement Act, the National Recovery Act and the Agriculture Adjustment Act into constitutional oblivion.

In the next month came what many commentators consider the last straw on the New Deal-ites backs: The Court held a New York minimum wage law unconstitutional. The vote without Roberts was 4-4. The swing man went with the majority, and the law was history.

While “conservatives” on the Supreme Court were emasculating FDR’s beloved New Deal policies by ruling unconstitutional the statutes that implemented them, the President’s minions had not been asleep.

The inaugural grandstands had hardly been taken down when the President as early as 1933 decided to dilute Republican strength in the federal judiciary, especially on the Supreme Court. He surreptitiously launched a secret project to investigate how he could castrate the Court.

Ideas came and went, proposed by eminent jurisprudents, sitting judges, even cabinet officials including the Attorney General of the United States.

Eventually, a bill emerged aimed at emasculating the Court and making it more amenable to upholding the New Deal.

The Judiciary Reorganization Bill of 1937’s core element was that the President could appoint a new federal judge/Supreme Court justice for each jurist with ten years service who did not retire or resign within six months of attaining age 70. That meant Roosevelt could add several new justices, altering the liberal/conservative balance.

Opposition from virtually all quarters was fierce, including among prominent liberals and democrats.

Then, tactical errors and human mortality, derailed the bill.

FDR’s legislative operatives ignored Congressional leaders before making the bill public. That killed it in the House.

Roosevelt then shifted to a more congenial venue: the fireside chat. In March 1937, the President of the United States went on the radio and attacked the Supreme Court of the United States for “reading into the Constitution words and implications which are not there, and which were never intended to be there.” Worse, FDR confessed what he and his cronies had until then kept publicly unspoken: that the Democrats believed America had to “take action to save the Constitution from the Court, and the Court from itself.”

But who would save the Court from the Roosevelt Administration?

Ultimately, the public, which opposed FDR’s court-packing scheme and whose opposition helped stiffen the backs of anti-Roosevelt senators.

At the Senate Judiciary Committee hearings on the bill, Roosevelt trotted out his Attorney General and special advisor Robert H. Jackson (later Solicitor General, Attorney General, Associate Justice of the Supreme Court, and Chief Prosecutor at the Nuremberg War Crimes Trials).

Jackson launched a partisan attack not only on the Court’s perception of the scope of its power of judicial review, but also on the ideology of the dominant conservative majority.

It didn’t help.

The battle raged. Witnesses testified. Allies came and went. Animosities flared. The committee dragged out the hearings.

Chief Justice Charles Evans Hughes became directly involved in Roosevelt’s war against the Court by writing to Senator Burton Wheeler. In it, Hughes denied the President’s allegation that his Court was overworked and needed more justices.

Eventually, four events occurred which put an end to FDR’s attempt to pack the Supreme Court.
One was a voting shift by Roberts in a key March 1937 New Deal case (and two others), showing that the administration could obtain what it wanted from the Court.

Another was the May 1937 announcement by Associate Justice Van Devanter—one of the so-called conservative “Four Horsemen”—that he would retire two weeks later.

The third was the Senate Judiciary Committee’s June 1937 report that President Franklin Delano Roosevelt’s court-packing plan was “a needless, futile and utterly dangerous abandonment of constitutional principle . . . without precedent or justification.”

The fourth event occurred when the bill reached the floor of the Senate and was put into the capable hands of Majority Leader Joseph T. Robinson (to whom FDR had promised the first Supreme Court vacancy).

Debate began in the Senate on July 2, 1937.

Twelve days later Robinson died of a heart attack. (Roosevelt, in a master political stroke, skipped his fellow Democrat's funeral.)

Together with Joseph T. Robinson, FDR’s court-packing plan was dead.

Far from dead, however, is the possibility that Obama may be tempted to channel Roosevelt. As I said in Part I of this essay, to achieve his comprehensive undemocratic plans for the United States Obama’s appointment of Sonia Sotomayor will not be enough.

For Obama to turn this country into the socialist/fascist paradise he desires, it is essential that he seize control of the Supreme Court. In Part I of this essay I wrote that “Barak H. Obama must emulate the cynical, utterly un-American but not unconstitutional tactic of the predecessor with whom he is most often compared: Franklin Delano Roosevelt. Barack H. Obama must ‘pack’ the Supreme Court of the United States.”

While Roosevelt failed, Obama may not— because there are ominous parallels. Just switch the names in the next three paragraphs.

When Roosevelt took office, Wall Street had crashed, unemployment was at serious levels, Hoover’s response had been misguided and inadequate, some people were starving, public confidence was at an all-time low.

When Roosevelt took office, he was surrounded by a charismatic aura, he carried the banner of a New Deal for the American people, he was perceived as energetic and having all the answers, he enjoyed enormous public support, he had substantial Congressional majorities, he touted more government as the cure for the country’s economic ills, he was unafraid to spend incalculable sums of treasure to buy our way out of depression. FDR was seen as the savior—in stark contrast to his predecessor, Herbert Hoover, who was perceived as bumbling and incompetent.

Once Roosevelt had the government firmly in his hands, he surrounded himself with a cabal of likeminded unprincipled zealots, dozens of new laws were passed altering forever America’s financial and economic system, and federal appropriation of private property took a quantum leap.

And when a bare majority of the Supreme Court of the United States tried to stop him—successfully for a while, but ultimately unsuccessfully—Roosevelt and his henchmen took on the Court itself.

Yes, the media and chattering classes have been correct: Franklin Delano Roosevelt and Barack H. Obama do have a lot in common. And if the latter takes on the Court, as the former did, the fight we must wage will have to be brutal.

Our blueprint for that fight has been provided by Professor Michael Parish: “. . . [T]he protracted legislative battle over the Court-packing bill blunted the momentum for additional reforms, divided the New Deal coalition, squandered the political advantage Roosevelt had gained in he 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism. When the dust settled, FDR had suffered a humiliating political defeat at the hands of Chief Justice Hughes and the administration’s Congressional opponents.”†

“The administration’s Congressional opponents.”

Aye, there’s the rub.

If Obama moves against the Supreme Court, are there any Republicans in Congress, especially the Senate, who have the intellect and the courage to rally public opinion and stop this latter-day New Dealist in his tracks?

Unfortunately, we may find out.

* For an overview of President Franklin Delano Roosevelt’s court-packing plan, see the Judiciary Reorganization Bill of 1937 at Wikipedia on the Internet, and for a detailed treatment of the subject see the sources cited therein.

† Michael Parrish, “The Great Depression, the New Deal, and the American Legal Order,” 59 Washington Law Review, 723, 737 (1984).

Monday, June 8, 2009

Sotomayor: Only Part of Obama's Wicked Scheme for the Supreme Court (Part I)

I and many others have written about the genius of the Constitution of the United States of America, with its carefully explicit “vertical” separation of powers between the federal and state governments (see the Tenth Amendment) and its “horizontal” separation of powers on the federal level between the legislative (Article I), Executive (Article II) and Judicial (Article III) branches.

This, in lay terms, is what civics classes used to call “checks and balances.” Textually, the federal government possesses expressly delegated powers, and all other powers are reserved to the states or their people. On the federal level, no branch is supposed to exercise the powers of the other(s). Congress enacts the laws, the President faithfully executes them (and runs the foreign affairs shop), and the courts (especially the Supreme Court) interpret federal statutes and the Constitution.


At least in theory.

Too often Congress has abdicated its legislative role, handing it off to the alphabet world which actually runs our overregulated country. Think FCC, FDA, SEC, NLRB, FEC, FAA, etc.

Too often the President has acted beyond the scope of even arguable powers. Think FDR’s closure of the banks, and Truman’s seizure of the steel mills

Too often the Supreme Court has “interpreted” the Constitution to invent a-textual “rights” the Founders never dreamed of. Think Miranda v. Arizona, Roe v. Wade. Think “prisoners’ rights” and welfare on demand. This from the branch that is supposed to check the transgressions of the other branches, and is ultimately responsible for deciding what the Constitution allows and disallows.

Not counting the soon-to-be-gone and unlamented David Souter, an indefensible appointment by President George H.W. Bush, there are eight other justices.

The “conservatives” are Chief Justice Roberts and Associate Justices Scalia, Thomas and Alito.

The “liberals” are Associate Justices Stevens, Breyer and Ginsburg.

Then there’s the “liberative,” Associate Justice Kennedy, whose votes swing this way and that.

Ginsburg is not well, and many anticipate her retirement soon after the current term ends in a few weeks. Another seat for Obama to fill.

Stevens is nearly ninety. Soon he will either step down or, if like William O. Douglas he is unable to fulfill his arduous duties, he will be gently nudged out. Another seat for Obama.

The conservatives are significantly healthier than Ginsburg and considerably younger than Stevens. Ditto Kennedy.

Per capita, there are more conservatives on the Supreme Court than in Congress.

In the House, Democrats have a substantial majority, and the keys to the kingdom: committees, hearings, investigations, funding, impeachment, internal ethics inquiries into Members’ conduct. They own the game.

In the Senate, Democrats have a comfortable majority, save for being able to invoke closure. On straight party-line votes—assuming Minnesota seats Franken, and when Burris is defrocked the Illinois governor appoints another Democrat—the party of Jimmy Carter will be able to break a Republican filibuster.

The House’s Speaker, Nancy Pelosi, is both militantly left and shamelessly self-aggrandizing, and will stop at nothing to have her way. More than a few of her minions, Jerrold Nadler for example, are no better.

The Senate’s Majority Leader, Harry Reid (in electoral trouble in his own state), is an ethically challenged partisan who combines those charming qualities with terminal dimwittedness. Working closely with Reid on judicial nominations is the estimable Charles E. Schumer, an architect of the Sotomayor nomination.

In sum, the Democrat Congress is in control of our lives and fortunes, though thankfully not our sacred honor, and will use their power, as it has already, to march in lockstep with the agenda of their leader, Barack Obama.

As an ineffectual counterweight to the Democrat Party, we have the Republicans.

Today’s Republican Party is not a “Big Tent” (if it ever was), but rather what often happens inside one: a circus.

In the last presidential primary, the Republican Party coughed up five-and-a-half candidates (excluding Hunter, Keyes and Tancredo): Giuliani (New York’s favorite Liberal Party candidate), Romney (former card-carrying liberal), John McCain (RINO pal of environmentalists and enemy of free speech), Ron Paul (current card-carrying libertarian) and Fred Thompson (who joined the dance late and left early).

After eight years reign by the Republican Party’s “compassionate conservative” President, George W. Bush, and the not-so-sub rosa influence of his much-touted brilliant “architect,” Karl Rove, and several years of Republican control of much of Congress and the governorships, it was apparent that not a single candidate holding even semi-consistent conservative principles had been groomed for the 2008 nomination. (My nose is still sore from holding it when I pulled the lever for McCain.)

Following McCain’s ignominious performance in the general election, the Republican Party turned to its new non-conservative chairman, Michael Steele, a na├»ve “can’t we all get along” compromising politician’s politician who will be outmaneuvered by the Democrats’ street fighters.

In the House we have a few good guys, of both genders, but they are as outnumbered as Texans at the Alamo.

In the Senate, the hapless Mitch McConnell, who barely won reelection, has yet to learn the Reid-Schumer-like lesson of “attack, attack, attack, and never give in.” His man on the Judiciary Committee is Jeff Sessions, who even in advance of the Sotomayor hearings has apparently ruled out a concerted attempt to derail her nomination.

Which bring us to the man the Democrats are in thrall to: POTUS Barack H. Obama.

During the 2008 presidential primary Osama was raked over the coals on every imaginable issue including constitutional (e.g., “native born” citizen), personal (e.g., Ayers, Dohrn), transparency (e.g., his academic accomplishments), ethics (e.g., eliminating his opponents), mentors (e.g., Tony Rezko), legal (e.g., fundraising), political influences (e.g. Saul Alinsky) and more.

In addition to obfuscating about these issues, candidate Obama was hardly more forthcoming about his core poliical, economic and jurisprudential values.

Now we know, explicitly.

Politically: “We won, and can do whatever we want.”

Economically: As he told Joe the Plumber during the campaign, “It’s good to spread the wealth around.”

Jurisprudentially: Judges should decide empathetically, whilst making policy (rather than the politically accountable Congress).

A formidable agenda, with only one stumbling block: the Supreme Court.

To accomplish that agenda, above all else Obama must control the Supreme Court of the United States.

Congress can give our former compassionate conservative President and his Treasury Secretary unchecked power to raid the public fisc to stave off automakers’ bankruptcy, or use for any other purpose they see fit—but is it constitutional? The Supreme Court decides.

Obama can fire the president of General Motors—but is it constitutional? The Supreme Court decides.

Congress and Obama can spread the wealth in myriad ways, take over private companies, nationalize banks, favor friends and punish enemies—but is it constitutional? The Supreme Court decides.

Virtually every one of Obama’s socialist/fascist plans for the American economy, financial system, culture and other aspects of our lives are subject to judicial scrutiny—eventually by Obama-appointed federal judges, merrily making policy and exercising their sizeable reservoirs of empathy.

But first, Obama needs absolute control of the Supreme Court of the United States.

He will not achieve that even with the confirmation of Sonia Sotomayor, perhaps the best choice for advancement of Obama’s agenda.

Concerning Sotomayor, a few weeks ago I wrote in this blog an essay entitled “Sonia Sotomayor and the Ghost of Harriet Miers” that:

In a 2007 speech to Planned Parenthood, candidate Obama told us exactly what President Obama would do about Supreme Court nominations: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” (My emphasis.)

Now he’s actually done it, with his nomination of Sonia Sotomayor.

While many of us knew that while she sat first on the federal district court, and for the last decade on the United States Court of Appeals for the Second Circuit, she lacked appropriate judicial temperament (to use a phrase from the Bork confirmation hearing), was no intellectual, viewed the role of judges as akin to legislators, believed that race and gender trumped precedent and sound judicial decision-making, had indefensible political relationships, and otherwise had no business being a federal judge (let alone a Supreme Court justice), now anyone who can read (and expends the effort to do so) knows Sonia Sotomayor’s manifest deficiencies. (See

Given her objective deficiencies, actually because of them, Sotomayor will help Obama obtain control of the Supreme Court.

But she alone is not enough.

Even if Obama replaces Ginsburg with a Sotomayor II, Stevens with a Sotomayor III and Breyer with a Sotomayor IV (which he could conceivably do in four years, let alone eight), while the four conservatives remain on the bench and Kennedy does not go completely mad, the President’s agenda for this country could be thwarted.

This means there’s only one way Obama can seize unquestioned control of the Supreme Court.

Barack H. Obama must emulate the cynical, utterly un-American but not unconstitutional tactic of the predecessor with whom he is most often compared: Franklin Delano Roosevelt.

Barack H. Obama must “pack” the Supreme Court of the United States.

To be continued………………………….