ME Governor Signs Gay Marriage Bill

Maine is the second state to legislatively allow same-sex marriage without being forced to by a court order. This gay marriage stuff is happening so frequently now, what would have once been worth a flaming skull is rapidly approaching sidebar headlines status.

The Maine marriage bill, like Vermont’s, contains religious conscience exemptions for churches and also explicitly provides that no person for any reason (religious or not) that is allowed to perform marriages can be forced to perform a marriage they don’t want to.

New Hampshire is also poised to pass a new marriage law. Like Governor Baldacci before today, New Hampshire Governor Lynch has not stated whether he would sign the bill.

Additionally: The California Supreme Court Prop 8 ruling is due within thirty days. I discussed the case here and the potential outcomes here. I predict that Prop 8 will be upheld, but the 14,000 gay marriages performed prior to its passage will not be invalidated. Ace predicts the “outcome-oriented” Court will knock down Prop 8 here.

Randy Barnett’s Bill of Federalism

I’ve been mulling this since yesterday. It’s a more refined version of the federalism amendment Randy Barnett proposed last week. There are ten proposed amendments, and I can’t excerpt them all so go take a look. I really like most of the suggestions, with the exception of these a few:

Article [of Amendment 4] — [Recision Power of States] Upon application of the legislatures of two thirds of the states, any law, regulation or order of the United States shall be rescinded.

No and no. You want to change legislation, you elect different people to Congress. Letting a majority of states do an end-run around the entire system of federal governance is a big mistake. For example, if this amendment had been law, it’s entirely possible that two-thirds of the states would have ended the Iraq War in 2006 and rescinded the War on Terrorism AUMFs.

There are some powers that we, as a People, have committed to a national government. Those powers should remain with the national government. The national government and the state legislatures have different interests. Tying them so closely together, actually making the national government no better than a puppet for highly contested issues is not what the founders had in mind and it does not “restore the balance” to government, as Barnett’s preamble states.

Moreover, if Barnett’s first and second proposed amendments are passed, the national government’s current overreach will have ended and there’d be no need for this one. At most, if you want to give state legislatures a bit more say in Congress, repeal the Seventeenth Amendment and give them back the power to select Senators.

Similarly, the eighth proposed amendment, the balanced budget/line item veto, seems ripe for abuse. Fortunately, it seems unnecessary if the amendments rescinding the income tax and curtailing federal power pass.

What do you guys think? Barnett writes that this is still a work in progress. Do you have suggestions or modifications you want me to forward to him?

Oh, one more thing: I would like to see the Tea Party movement start to adopt this type of concrete proposal. This shouldn’t just be about protesting futilely while President Obama drives this country over a cliff. Now is the chance to make revolutionary changes in our system of governance. Start with the proposal now and as things get worse (which I cynically expect them to, especially after cap and tax) many more people are likely to think, “Huh, maybe we can do something about it.”

That’s party of the beauty of this proposal. This isn’t rocket science to explain. No income tax. No death tax. No federal meddling in state affairs. Term limits. No judicial activism.

Lawless President Obama Attempts a Robbery; Violates Constitution on a Whim

Drew M. points me to the continuing dust-up between the Chrysler creditors and the Obama Administration and asks about the Fifth Amendment questions they’ve raised. I missed this story earlier in the day, so it may be old already, but it bears repeating.

Zombie-Chrysler has teamed up with the unions and the Obama Administration to deprive the individuals and institutions who hold Chrysler’s debt of their due. They would like the Bankruptcy Court to reorganize the company (by means of bankruptcy sale) into what they’re calling “New Chrysler” free and clear of their obligations to pay back the creditors. This type of thing is usually referred to as “debt restructuring”, but in this case the more appropriate description would be “Chavez says this isn’t your property anymore, puta.”

So far the creditors have refused to be cowed by Obama’s threats and very public scolding for their lack of patriotic sacrifice. This morning they really started to fight back with a brief eleven-page filing in the bankruptcy proceedings (PDF). Why is it so short? Because they had no more than 15 hours to assemble it.

On Sunday night the debtors (that would be Zombie-Chrysler with the Obama Administration pulling the strings) moved to proceed with the bankruptcy sale. They dropped a 290-page filing under cover of darkness, the object of which is to wipe out the creditor’s secured liens. This was an attempt at robbery.

Some background (and this isn’t my area of expertise, so this is just general stuff; DWL). Bankruptcy is set up to determine in what order individuals involved with a failed enterprise get paid out of what remains. This is called the “estate” and is usually real property, capital improvements, left over stuff like that. And the Bankruptcy Code is essentially a method of sorting the parties and determining who gets to stand at the front of the line. Secured creditors–like the creditors I’ve been referring to above–stand at the very front of the line.

That’s where the Obama-directed, Chavez-inspired sale motion comes in. They want to move the secured creditors behind certain unsecured creditors (the unions) and thus deprive the creditors of their property. Because if there’s one certainty here, it’s that there isn’t enough money left in Chrysler to pay everyone who’s standing in line.

The creditor’s motion is straightforward. Probably owing to the very short time they had to prepare it, it doesn’t engage in legal analysis so much as simply throw objections at the bankruptcy judge with some caselaw cited so he can work it out himself. That doesn’t mean they’re wrong.

Ed concentrated on the constitutional claim–that the Obama plan is unconstitutional under the Takings Clause of the Fifth Amendment. Several people have asked if the 1935 case the creditors cite is still good law. It is. In fact, the holding is at the core of Takings jurisprudence. In the words of Justice Brandeis:

“[T]he Fifth Amendment commands that, however great the Nation’s need, private property shall not be thus taken even for a wholly public use without just compensation. If the public interest requires, and permits, the taking of property of individual mortgagees in order to relieve the necessities of individual mortgagors, resort must be had to proceedings by eminent domain; so that, through taxation, the burden of the relief afforded in the public interest may be borne by the public.”

To the extent the President suggests that he can simply ignore property rights–even if the TARP says he can (which is unclear)–he is incorrect.

Like I said, this isn’t my area so I don’t know if this is a slam-dunk. Takings law has drifted over the years into arguments over whether a taking deprives the owner entirely of his property, with some courts suggesting that in certain circumstances partial takings aren’t protected by the Fifth Amendment. I don’t know whether the proposed robbery leaves the creditors with nothing or merely less, and I don’t know if that matters when we’re talking about dissolving liens rather than regulatory taking. Maybe the Bankruptcy Court will reach the constitutional issue and we’ll find out.

But I doubt it. As interesting as it would be to have it on the record that the President ignored the constitution in order to attempt a robbery, the Bankruptcy Court doesn’t have to go that far. The creditor’s motion describes statutory reasons for disapproving the sale: it doesn’t comply with the Bankruptcy Code. Unless Congress wants to try and make this thuggery legal by altering the Code, the Court has ample opportunity to stop it without discussing the constitutional problem.

Specter Pisses on Kemp’s Grave

What the fuck, man?

“Well, I was sorry to disappoint many people. Frankly, I was disappointed that the Republican Party didn’t want me as their candidate,” Mr. Specter said on CBS’s “Face the Nation.” “But as a matter of principle, I’m becoming much more comfortable with the Democrats’ approach. And one of the items that I’m working on, Bob, is funding for medical research.”

Mr. Specter continued: “If we had pursued what President Nixon declared in 1970 as the war on cancer, we would have cured many strains. I think Jack Kemp would be alive today. And that research has saved or prolonged many lives, including mine.”

You gotta be kidding me.

There’s a reason good people don’t like Senator Independent-Minded and this is it. He’s got no respect for anything other than his own ambition. Which is why he thinks it’s just peachy to exploit Kemp’s death before his body is even in the ground.

This fits perfectly with his new party. It’s unverifiable speculation whether more cancer spending would have prolonged Kemp’s life. And it doesn’t make a lick of sense. Does Specter think that there is no interest in curing cancer unless the federal government spends money on it? Is he retarded?

Judge Sotomayor: “The Court is Where Policy is Made”

Judge Sonia Sotomayor of the Second Circuit Court of Appeals is one of the likely candidates to replace Justice Souter. Chuck Schumer has been pushing her name and she meets Obama’s stated interest in increasing diversity on the bench (she’s Hispanic).

So, what kind of judge is she? Morgen, of the blog Verum Serum, found this:

“All of the legal defense funds out there– they’re looking for people with court of appeals experience. Because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don’t make law. [Laughs] I know. I know. [Laughter] I’m not promoting it, I’m not advocating it, I’m…y’know.”

Check out that hand wave at the end. She walks it back, sure, but there’s no question what she believes. She thinks she gets to make policy and she knows that she’s not supposed to say that out loud. This is what Obama is looking for on the bench.

Incidentally: This is probably a good time for a discussion about timing. Morgen, who found this, had a tough choice. He’s found something juicy, but it may be even better to sit on it for a while (like, say, until Obama nominates Sotomayor for something). On the other hand, if he sits on it, someone else may find it and break it first.

There’s a limit on the effectiveness of stuff like this. If the Reverend Wright stuff had come to light in October, the last election may have turned out differently. But by the time the election rolled around everybody had adapted to it, justified it in their own minds, and moved on. It was “old news” and not worth getting upset about.

Of course, once people started scrutinizing Wright it all came out. It was over and done. That’s what news media (and blogs) are about. Getting the story and sharing it. The same can be true for Obama’s likely choices to replace Souter.

Everybody’s looking at Sotomayor, Kagan, and Wood now, but whoever Obama wants probably won’t be nominated until mid-June at the earliest. The real deadline isn’t until October, when the Court’s next term begins, although the President is going to want to give his choice an opportunity to get settled and hire clerks. All this attention now might give the moderate Democrats, who might have a problem with Judge “I Make Policy” Sotomayor or the other likely nominees, time to adapt.

I’m not criticising Morgen. I’m just saying, sometimes it’s a balancing act. Just like the legacy media, bloggers are advocates. We want certain outcomes and in this case Morgen and I want Obama to end up with pie on his face before the Souter seat is filled. But we also want to break big stories and scoop the rest of the blogs.

Al-Marri Pleads Guilty to Supporting Terrorism, But This is Another Failure for Lawfare

The shameful Al-Marri case is nearly played out; he pleaded guilty to a single charge of providing material support for terrorism. Ali Saleh Kahlah Al-Marri was arrested in December 2001 on suspicion of being a sleeper agent. He was then held as an enemy combatant starting in 2003.

He is the poster-child for the failures of the criminal justice system to cope with the War on Terrorism.

In 2002, Al-Marri was charged in Illinois with making false statements to the FBI and to financial institutions, identity fraud, and credit card fraud. Those charges were dropped when President Bush designated him an enemy combatant in 2003. He was moved to the Naval Brig in Charleston.

He then challenged his detention in court. The Fourth Circuit was happy to oblige and ordered that he be released or transfered back to civilian control and charged with a crime. The en banc court realized that was pure, unfiltered insanity–death pact style–and decided to take another crack at it. The result was perhaps the most fractured, incoherent, and embarrassing decision ever issued by a circuit court of appeals. Here’s what I wrote at the time. A taste:

An en banc panel of the Fourth Circuit announced its decision in a Guantanamo detainee case, Al-Marri v. Pucciarelli (PDF) today and it is a mindnumbing 216 pages long. The decision itself is per curiam which means the court came to a conclusion without assigning a specific judge to present it. Why? There are nine judges and seven different opinions, including two different 5-4 decisions and four additional decisions “concurring in part and dissenting in part.” This is what the War on Terror looks like in the federal courts. It is an unholy mess.

This was the result of the Supreme Court’s abandonment in Boumediene v. Bush of over 200 years of constitutional law. Terrifyingly, the Supreme Court agreed to hear Al-Marri’s case this term. Before that could happen, the Justice Department (first under Bush and then under Obama) decided that maybe civilian control would be a better idea after all.

On February 27, 2009, he was indicted for providing material support to al-Qaeda and conspiring with others to provide material support to al-Qaeda. He was transferred out of the Naval Brig and back to Illinois, where the whole thing started seven years ago. He initially pleaded not guilty and the case was set for trial.

Today, he pleaded guilty to the material support charge. The other charge was dismissed. The details are chilling:

Papers filed in connection with Al-Marri’s guilty plea paint an unusually detailed portrait of his dealings with Al Qaeda and, in particular, with one of the group’s leaders, Khaled Sheikh Mohammed, known as KSM. Al-Marri admitted to attending terrorist training camps run by Al Qaida and that he traveled to the United States at the direction of KSM, who told him to enter the U.S. no later than September 10, 2001, one day before the terrorist attacks on the World Trade Center and the Pentagon.

The plea agreement says Al-Marri, using the code name “Abdo,” was to keep in touch with Mohammed, whose code name was “Muk,” by sending e-mails to him at a hotmail account, HOR70@hotmail.com. Details of the arrangements and the codes were found at an Al Qaeda safehouse in Pakistan, the plea deal says.

Court papers also say Mohammed arranged for Al-Marri to meet in Dubai with a financier of the September 11 attacks, Mustafa al-Hawsawi, who gave Al-Marri $10,000 to fund his travels to the U.S. Al-Marri entered the U.S. on September 10, 2001 and enrolled at Bradley University in Illinois. After the 9/11 attacks, he made repeated but unsuccessful efforts to contact KSM and al-Hawsawi by phone and e-mail, the documents say.

The plea agreement also says that Al-Marri conducted research on the effect of cyanide gas and on waterways, dams and tunnels where a terrorist attack could have been mounted.

Under the plea deal, the government agreed not to seek to detain al-Marri again, either through criminal charges or military detention, based on his involvement with al- Qaida prior to his arrest in December 2001. Court papers say he has agreed to be deported to Saudi Arabia or Qatar when his sentence is complete—or possibly sooner.

He faces a possible sentence of 15 years, but may receive credit for time served.

AG Holder is crowing that this is a victory for justice and the War on Terror:

“Without a doubt, this case is a grim reminder of the seriousness of the threat we as a nation still face,” Attorney General Eric Holder said in a written statement. “But it also reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which the nation was founded and the rule of law.”

Holder is a deluded fool. The American government walks away from this case with its tail between its legs. It was thwarted at every turn by our own legal system. Read back over the details of what Al-Marri was up to and tell me with a straight face that justice was served. The criminal justice system failed us.

Lawfare Fails Again

The folly of pretending the War on Terror is a law enforcement problem was illustrated again yesterday, first in the UK and then here in California.

First, The three 7/7 conspirators, on retrial for aiding in the bombing attacks on London’s metro and bus system, were acquitted of the terrorism charges. Their first jury last year couldn’t come to a verdict. Neither jury was allowed to see much of the evidence that connected the men to the 7/7 bombers because wiretaps conducted by intelligence agencies are not admissible in UK courts.

I’ve said it before: evidence collection and intelligence gathering are not the same thing. They have different purposes and different legal consequences.

Second, the Ninth Circuit ruled that the state secrets privilege, which had been asserted by both Presidents Bush and Obama, could not shield a Boeing subsidiary from litigation. The subsidiary, Jeppesen Dataplan Inc., was sued by five men who allege that they were kidnapped and tortured as part of the extraordinary rendition program. The U.S. government intervened in the suit and asked that it be dismissed since details of Jeppesen’s participation–mainly filing flight plans–would compromise national security.

The Ninth Circuit refused to allow the dismissal, holding that state secrets privilege must be asserted on an “item-by-item basis” to discovery requests by the parties.

This is, as usual for the Ninth, a seriously retarded ruling. Consider: so the case is back in district court and the five guys make discovery requests. The U.S. government now has to intervene each time it finds a request objectionable. Then, it will have to file an interlocutory appeal each and every time the district court rules against it (assuming it really wants to assert the privilege). The government cannot wait for the end of the trial to appeal adverse state secrets decisions. By then the secret won’t be.

So the Ninth has created a situation where this litigation can conceivably bounce back and forth to the appellate courts indefinitely as the parties seek discovery and the U.S. government continues to assert state secrets privilege. This assumes that Obama stays the course on state secrets (maybe not a great assumption).

In the Ninth Circuit’s defense, this area of law isn’t very well developed. On the other hand, that should have given them plenty of room to fashion a workable solution. Instead, they ignored the practical result of their decision. A copy of the opinion is available here (PDF).