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PETA's call in wake of Vick plea plan has merit
Attorney Blogs | 2007/08/23 08:24

No matter how you feel about Michael Vick or the folks at People for the Ethical Treatment of Animals (PETA), only a drooling, spiral-eyed sadist would insist that drowning, hanging or electrocuting innocent dogs should be an unpunishable offense, let alone allowing them to rip each other to shreds for fun and profit. Guilty dogs should be included in that statement, too.

Now that Vick will cop a guilty plea in a federal dogfighting case loaded with allegations of such hideous, heartless behavior, PETA is calling for the public's assistance in demanding that the NFL add cruelty to animals "in all its forms" to the list of offenses in the league's code of personal conduct. The organization's Web site cites three prior cases -- Falcon tackle Jonathan Babineaux accused in February of beating his girlfriend's pit bull, which later died; ex-Packers/Cardinals/Giants running back LeShon Johnson found guilty in 2004 of involvement in a dogfighting ring; and former Eagles running back Thomas Hamner charged in 2001 with beating his dog.

If there's any cosmic justice for all of those poor pooches, Commissioner Roger Goodell will listen to PETA's minions. Of course, if he acts according to PETA's standards, he'll have to suspend a big chunk of the league. PETA is steadfastly against using animals for food, clothing, experimentation, entertainment or "any other purpose" and the NFL is home to more than a few players who avidly "enjoy" hunting.

Yep, hunting. Don't think that widely-accepted recreational activity is cruel? That deer or rabbit that just had a shell or arrow put into it and crawled off to bleed to death in the brush will beg to differ, as will the buffalo, boar, elk and more that are sitting ducks in enclosed areas on so-called "canned hunt" farms. And if you go by PETA's standards, fishing is a no-go, too. Think that bass enjoys that hook in the roof of its mouth while it's hauled gasping out of the drink?

I know. Get a grip, Rolfe. Personally, I've never understood what's so enjoyable about killing things. The chance to spend time in the great outdoors? Take a hike, son. For food and clothing? Unless you live in the wild, God invented supermarkets, falafel stands and fabrics just for you, Jack.

Before we go any further, I plead guilty to sitting at the groaning board each night, belching contentedly as I toss bones over my shoulder. I know that the animals I consume are raised and killed in hellish conditions. It's amazing what a little barbecue sauce can do to a man's conscience. I pass a sheep farm every day and when I think about chasing one of those cute, wooly critters around with a big ol' fork, I realize I'm just a goldplated candy ass who would be slaughtering and butchering fruits and vegetables -- exclusively -- if I had to slaughter and butcher my own meat.

I've heard the arguments that hunting helps control certain populations, such as deer, that would otherwise take a big nasty hit from disease and starvation. But whether it comes at the hands of Mother Nature or mankind, cruelty is cruelty. Is cruelty merely defined by the manner and circumstance in which pain and death are inflicted on animals?

You bet.

So, the NFL's avid hunters and fishers can rest easy, not that the league would ever bow to PETA's standards. After all, this is the ultimate meat-eater league in a sport where tales of coaches strangling a bulldog (Harvard's Percy Haughton in 1908) or having a bull castrated in front of players (Mississippi State's Jackie Sherrill in 1992) to inspire their ferocity are legendary if not always true, as in the case of Haughton. But, in the wake of the Vick case, PETA's plea deserves a sincere nod in the form of stern warnings and penalties from the NFL. The general legal definition of cruelty used by the Humane Society and state chapters of the Society For Prevention of Cruelty to Animals is a reasonable place to start: "Any act of violence or neglect against an animal, causing unnecessary and extreme pain or suffering and death."

At the very least, exactly what those acts are should be food for thought.



A grudging defense of Gonzales' inartful dodging
Attorney Blogs | 2007/08/02 11:35

I find myself in an unaccustomed and unexpected position: defending Attorney General Alberto Gonzales.

Gonzales fans, if there are Gonzales fans left, except for the only fan who counts: Don't take any comfort from my assessment.

In his Senate testimony last week, Gonzales once again dissembled and misled. He was too clever by seven-eighths. He employed his signature brand of inartful dodging — linguistic evasion, poorly executed. The brutalizing he received from senators of both parties was abundantly deserved.

But I don't think he actually lied about his March 2004 hospital encounter with then-Attorney General John Ashcroft. I certainly don't think he could be charged with — much less convicted of — perjury.

Go back to December 2005, when The New York Times reported on a secret program of warrantless wiretapping. President Bush acknowledged an effort "to intercept the international communications of people with known links to al-Qaida and related terrorist organizations."

Soon, the first stories about the hospital visit appeared.

In a Jan. 1, 2006, article, the Times reported then-Deputy Attorney General James Comey's refusal to approve continuation of the surveillance program and described "an emergency visit" to Ashcroft's hospital room by Gonzales and Andrew Card, then White House counsel and chief of staff, respectively.

Similarly, Newsweek reported how the White House aides "visited Ashcroft in the hospital to appeal Comey's refusal. In pain and on medication, Ashcroft stood by his No. 2."

It was in this context — senators knew about the hospital visit well before Comey's riveting description in May — that Gonzales appeared before the Senate Judiciary Committee in February 2006.

Asked about those reports, he said that "with respect to WHAT THE PRESIDENT HAS CONFIRMED, I do not believe that these DOJ officials that you were identifying had concerns about this program." The disagreements, he said, "dealt with operational capabilities that we're not talking about today."

Flash-forward to last week, when Gonzales once again said: "The disagreement that occurred and the reason for the visit to the hospital ... was about other intelligence activities. It was not about the Terrorist Surveillance Program THAT THE PRESIDENT ANNOUNCED TO THE AMERICAN PEOPLE."

The emphasis is mine, and it matters. We know, from Comey's account, that the dispute was intense. We don't know precisely what the disagreement was about — and it makes sense that we don't know: This was a classified program, and all the officials, current and former, who have testified about it have been deliberately and appropriately vague.

In his May testimony, Comey referred only to "a particular classified program." FBI Director Robert Mueller told the House Judiciary Committee last week that the hospital-room encounter was about "an NSA program that has been much discussed."

Does this really contradict Gonzales or turn him into a perjurer? It's clear there was an argument over the warrantless wiretapping program. Comey refused to recertify it. In response, something about the program changed; Justice officials were willing to go along with the modified program.

The New York Times reported Sunday that the disagreement involved "computer searches through massive electronic databases" — not necessarily the more-limited program the president acknowledged. As the Times put it, "If the dispute chiefly involved data mining, rather than eavesdropping, Mr. Gonzales' defenders may maintain that his narrowly crafted answers, while legalistic, were technically correct."

Congress deserves better than technically correct linguistic parsing. So the bipartisan fury at Gonzales is understandable. Lawmakers are in full Howard Beale mode, mad as hell at Gonzales and not wanting to take it anymore.

But perjury is a crime that demands parsing: To be convicted, the person must have "willfully" stated a "material matter which he does not believe to be true."

The Supreme Court could have been writing about Gonzales when it ruled that "the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth" — even if the answers "were not guileless but were shrewdly calculated to evade."

Consequently, the calls by some Democrats for a special prosecutor to consider whether Gonzales committed perjury have more than a hint of maneuvering for political advantage. What else is to be gained by engaging in endless Clintonian debates about what the meaning of "program" is?

Rather, lawmakers need to concentrate on determining what the administration did — and under what claimed legal authority — that produced the hospital room showdown. They need to satisfy themselves that the administration has since been operating within the law; to see what changes might guard against a repetition of the early, apparently unlawful activities; and to determine where the foreign intelligence wiretapping statute might need fixes.

That's where Congress's focus should be — not on trying to incite a criminal prosecution that won't happen of an attorney general who should have been gone long ago.



Taking Aim at D.C.’s Gun Law
Attorney Blogs | 2007/07/31 14:33
The District of Columbia has the most restrictive gun laws in the country. But that’s a distinction the nation’s capital will soon lose—if Robert Levy prevails. Levy was born in Washington, but left years ago; a resident of Naples, Fla., who made a fortune as an investment analyst, he is now a senior fellow in constitutional studies at the libertarian Cato Institute. A critic of what he sees as unnecessary government regulation, he rounded up six D.C. plaintiffs who either owned firearms or wanted to, for self-protection, and helped bankroll their challenge to the city’s gun law—which makes it illegal to own or possess an unregistered handgun (D.C. stopped registering handguns back in 1978). The city permits registered “long” guns like shotguns and rifles, but they must be disassembled or disabled with trigger locks, and it’s illegal to use a firearm of any kind in self-defense—even in the owner’s home.

The suit, which is being bankrolled by Levy, has been successful so far; in March, the U.S. Court of Appeals for the D.C. Circuit found the gun law unconstitutional. Earlier this month, D.C. officials announced plans to take the case (Parker v. District of Columbia) to the Supreme Court, in hopes of having the appeals court’s ruling overturned. If the high court agrees to hear Parker, it could finally settle one of the biggest arguments in constitutional law: whether the Second Amendment’s right to “keep and bear arms” is an individual right or was meant to apply only to members of a “well-regulated militia.” NEWSWEEK’s Daren Briscoe spoke with Levy about the suit’s prospects, and what drove him to bring it to court. Excerpts:

NEWSWEEK: Why did you file this suit?

Robert Levy:
First, because I’m a fervent believer in the Constitution, including the Second Amendment, and I read the Second Amendment as securing an individual’s right to keep and bear arms. In most jurisdictions, the courts have read the Second Amendment only to protect members of militias.  In D.C., that issue has not been resolved.  I saw an opportunity, with my two co-counsels, to vindicate Second Amendment rights and to establish a precedent that, if it reached the Supreme Court, would be applicable across the nation.

You don’t own any guns personally.  Why not?

While I believe the Constitution secures my right to own guns, as a practical matter, I don’t sense the need to do so.  I live in a safe area, a relatively affluent area, and crime isn’t a major issue where I live.  I don’t have the same need for self-defense as the six plaintiffs in the Parker case.

Why is the Second Amendment so important?

Originally it was important as a protection accorded to American citizens against a tyrannical government. But even before the Constitution was written, even before the U.S. government was formed, the right existed.  It was a means of self-defense, and today the right to bear arms protects us against predators.  It’s important to note that the Second Amendment doesn’t grant a right to bear arms.  It says the right to keep and bear arms “shall not be infringed,” meaning that it already existed.

How expansive is your view of what the Second Amendment protects?  What if I want to walk around carrying a fully automatic machine gun?

The right to keep and bear arms, like all other rights, is not absolute.  Under the First Amendment, we can’t incite other people to riot. Under the Fourth Amendment, reasonable searches are permitted.  Well, in the case of the Second Amendment, there can be reasonable regulations.  It’s quite clear that some weapons can be regulated, weapons of mass destruction, for instance.  Some persons can be regulated against bearing arms, minors for instance.  Some uses can be and are regulated.  Uses of guns in crimes, for instance.  The question is what constitutes reasonable regulation.

D.C.’s mayor, Adrian Fenty, says that the gun laws have saved countless lives by keeping guns out of the hands of those who would hurt themselves or others.  What's your response to that?

I've looked at the evidence.  I've taught regression analysis and statistical inference, so I know a little bit about how to understand what it means, and the evidence is that gun laws do not help.  Gun restrictions tend to increase violence.  So, on both a constitutional basis and as a general matter, these gun restrictions have been counterproductive.  The evidence is that more gun laws lead to increased crime and more guns lead to decreased crime.

You're paying for this case out of your own pocket.  How much has it cost you?
I have paid for the whole thing, but a good part of this case was put together on donated time on the part of the attorneys involved.  My co-counsel Clark Neily and I are working on this pro bono, and our lead counsel, Alan Gura, is working at subsistence-level wages.  But I've spent a sizable sum of money, a substantial five-figure number.




Rudy gives idea of ideal Supreme Court Justice
Attorney Blogs | 2007/07/19 05:28

Rudy Giuliani pledged Wednesday to appoint Supreme Court justices in the model of conservatives Antonin Scalia and Clarence Thomas, hoping to win over anti-abortion Republicans in this key first-caucus state. But Giuliani avoided any mention of whether he would seek to overutrn the Roe v. Wade abortion rights decision -- now potentially just one justice from being repealed -- insisting he would not have a litmus test on that or any other issue.

Giuliani named those two justices, along with President George W. Bush's two picks, Chief Justice John Roberts and Justice Samuel Alito, as the kind of people he would put on the court. He said they don't try to write laws from the bench but only interpret the Constitution "in a way that will protect your rights and my rights. They will not get it into their heads that they're really legislators and they can go around changing things," Giuliani said.

Bush himself had mentioned Scalia and Thomas as his model judges during his 2000 campaign -- a move widely viewed as a way to signal conservatives that he would move the court rightward, including on Roe v. Wade.

But conservatives then knew that Bush was personally opposed to abortion. Giuliani is using a similar pledge to convince conservatives that he would look beyond his personal views in support of abortion rights in pickng justices, raising questions of whether it will be as effective an appeal.

Giuliani also defended his record of picking mostly Democratic judges as New York mayor, saying those people didn't decide constitutional issues but mainly presided over criminal cases.

Giuliani is making his first swing through heavilly Republican western Iowa today and tomorrow, seeking to convince voters he is not bypassing the state's January caucuses despite mixed signals from his campaign.



Bush orders review of import safety
Attorney Blogs | 2007/07/18 19:21

United States President George W Bush has ordered a review of rules to ensure the safety of imports, after several scandals over fake or dangerous goods from China. The US has recently banned Chinese seafood containing chemical residues, and it has recalled contaminated pet food and toothpaste, as well as toy trains made with lead paint. Mr Bush says new regulations have to meet the needs of a changing world.

"Part of our strategy is we work with... countries from which we import goods, to make sure that their procedures and practices will give us comfort," he said. "Finally we'll be working with companies that import goods from around the world, to make sure that their practices meet the high standards that we set for the United States."

Mr Bush has established a new panel to review the import rules. Speaking after meeting members of the new panel at the White House, Mr Bush said he believed the Government was on top of the situation.

But his comments fell short of the demands of some senators, who have called for a permanent import tsar with broader powers to oversee the safety of goods imported into the US. The panel is expected to make its recommendations on ways to improve the safety of imported goods in 60 days.



Roberts court overrules respect for precedent
Attorney Blogs | 2007/07/07 16:19

President Bush has let down his core supporters in so many ways. There's the big federal deficit. The "war on terror" has degenerated into a civil war in Iraq. His failed let-them-stay immigration policy clearly isn't what most in the GOP wanted. Remember the president's promise to set up private Social Security accounts? But in one big way, President Bush has done exactly what the conservative base hoped he'd do if elected and reelected. With the appointments of Chief Justice John Roberts and Associate Justice Samuel Alito, President Bush has turned the U.S. Supreme Court into a force to dismantle progressive policies of the past few decades.

Previously, the Supreme Court had upheld Congress' decision to stem the corrupting influence of big money on political campaigns. Even as the scandals surrounding former Rep. Randy "Duke" Cunningham and lobbyist Jack Abramoff proved that lawmakers were right to be concerned about big-bucks corruption of their own institutions, the Supreme Court this term struck down limits on contributions from corporations and unions - so long as those contributions come in the form of attack ads at least minimally disguised as "issue ads."

Although unions, which often back Democrats, benefit from the ruling, conservative Republicans are particularly thrilled because right-to-life groups have been aggressive in using such attack ads.

Note that Congress had not said such groups could not run attack ads. The law simply required that they be paid for with regulated "hard money" donations and not with unregulated "soft money."

The newly conservative court also took aim at Brown vs. Board of Education. Unlike that unanimous landmark delivered more than a half-century ago, the Roberts court could muster only a bare 5-4 vote to chip away at that important precedent. But the Bush administration's core supporters never have been shy about claiming total power from a slight - or even nonexistent - majority. The Roberts court said schools can't consider race as a factor when trying to rectify racial imbalance in schools. The upshot is that, in too many cases, schools will be unable to rectify racial imbalances. It's a step toward the bad old days of separate but equal.

The Roberts court has a habit of denying it is overturning established precedent even as it blatantly overturns established precedent. Expect, given the court's decision to outlaw a procedure used in mid- and late-term abortions, that other precedents concerning abortion rights will receive the same lack of respect.

The Bush presidency has been, by most methods of reckoning on the left and the right, a disaster. Depending on how long Mr. Bush's backward-looking majority dominates the high court, it could prove to be his biggest disaster, no matter how much his narrow base might celebrate it as his only victory.



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