Duval excoriated the Army Corps of Engineers and held them, and the government, directly liable for much of the flooding that devastated New Orleans’ Lower 9th Ward and St. Bernard Parish in the Hurricane Katrina disaster of 2005.

The full opinion is here. It is long, 156 pages, detailed, and absolutely fascinating reading. Seriously.

The potential ramifications are huge and, if the decision holds up in the certain appeal, affect large swaths of policy from basic concepts of Federal governmental liability, the structure and performance of government contracting and the entire future of national flood control policy.

Duval finds:

The Corps’ lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions….

Clearly, in this instance, the Corps shortchanged the inhabitants of New Orleans and the environs by its myopic approach to the maintenance and operation of the [Mississippi River Gulf Outlet] ….. It simply chose to ignore the effects of the channel.
…
It is the Court’s opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and shortsightedness. For over forty years, the Corps was aware that the Reach II levee protecting Chalmette and the Lower Ninth Ward was going to be compromised by the continued deterioration of the MRGO, as has been exhaustively discussed in this opinion. The Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so. Clearly the expression “talk is cheap” applies here.

The government had asserted immunity under the Flood Control Act of 1928 which, along with other laws, generally protects the Army Corps of Engineers from liability for defective flood-control project and provides the government can’t be sued for acting with reasonable care or making a judgment call based on policy. Duval, however held the pertinent shipping channel to be a navigation canal, not a flood-control project under the Flood Control Act of 1928 and that the Corps breached the duty of due care in their construction, maintenance and oversight of the navigation canal.

Duval’s current ruling only covers six named plaintiffs, but is thought to potentially open the door to over 100,000 plaintiffs’ actions on behalf of private property owners and businesses pending in the areas described in the ruling. So now the obvious question is whether Judge Duval’s monumental decision will withstand appeal.

The New York Times, citing Tulane University law professor Oliver Houck, an expert in environmental and natural resource law, indicated:

The United States Court of Appeals for the Fifth Circuit in New Orleans, where the case would go, has a record of hostility to plaintiffs in environmental cases, said Oliver Houck, a law professor at Tulane University. But, he said, Judge Duval’s decision is so technical and packed with details — it came with a 33-page appendix of graphs, charts and maps — that there are only a few areas where it would be exposed to a reversal.

“For an appellate court to reverse him on the facts is unthinkable,” Professor Houck said.

Well that still leaves the law of course, in this case Duval’s interpretation and application of the Flood Control Act of 1928 and the other immunity sources claimed by the government, but there is no question that Duval has intentionally and meticulously crafted a piece of art designed to anticipate and withstand scrutiny. Here is the Appendix of charts, graphs, maps and specs that Houck described; specially downloaded from PACER for the discerning readers of Emptywheel.

The government has been placed in a game changing box. Duval’s opinion is a work of art and, despite being lost in the hubbub of the healthcare shuffle and cable shouting orgies over Sarah Palin, is of seminal importance. Enjoy.

Chickenhawk

The Washington Post’s Michael Gerson wrote the most cowardly chickenhawk op-ed I have seen in a long time. I know I should not take the bait, but somehow can’t stop myself. He asks:

So how did Holder become the most destructive member of Barack Obama’s Cabinet?

Apparently Gerson finds fault with U.S. Attorney General Eric Holder’s decision to review a 2004 investigation by a DOJ task force in the Eastern District of Virginia which examined allegations of misconduct against the CIA. The task force found insufficient evidence of criminal conduct or intent. Holder appointed his own special prosecutor to review the investigation and its conclusion. Gerson thinks this means that Holder is “appeasing a political constituency that wanted the CIA to be hounded and punished.”

You may recall investigations during the Bush administration were conducted in an atmosphere chilled by marginalization in concert with career assistant U.S. attorneys being hounding out of office. The intimidation of AUSAs began almost from the time Bush took office in 2001 and would escalate all the way to the mass firing of U.S. Attorneys who did not “play ball” with Bushco. Is it any wonder that Holder wants to double check the conclusions asserted in that environment?

Gerson asserts that

morale at a front-line agency* in the war on terrorism has plunged. What possible reason could a bright, ambitious intelligence professional have to pursue a career in counterterrorism when the attorney general of the United States is stubbornly intent on exposing and undermining his colleagues?

* I’m guessing he means the CIA.

What we want are bright ETHICAL intelligence professionals;, not ethical relativists who put their ambition ahead of their obligations.

At this point, Gerson starts spreading the insults around, complaining that Holder displays an “exaggerated respect” for the work of career federal prosecutors in New York.

I admit I have a conflict of interest and a real bias here, but I don’t see any exaggeration. The Attorney General correctly listed the prosecutorial achievements of the flagship U.S. Attorney’s Office. Don’t blame the Southern District of New York for having good lawyers.

Gerson thinks AUSAs from SDNY will have difficulty making the case against five 9/11 conspirators, in a “circus atmosphere,”with “an uncertain chain of evidence (gathered on a battlefield),” and “under a cloud of torture allegations that Holder himself has encouraged.”

My understanding is that much (or maybe all) of the evidence was not “gathered on a battlefield.” If the bulk (or all) of the evidence is pre-capture, the torture allegations won’t taint it.

Gerson claims that the ONLY serious argument favoring trial in the civilian criminal justice system is that it will confer greater legitimacy on the imposition of the death penalty, but that really won’t matter because nobody will care about the procedural niceties that led up to the sentencing of accused terrorist Khalid Sheikh Mohammed.

WRONG! I care, I care a lot. I care because that trial is the answer to the Bush regime’s wholesale repudiation of the Constitution. And the world cares; it cares whether or not the U.S. will once again strive to live up to the ideals of its founders.

Now for the canned GOP talking point:

In exchange for a marginal public relations advantage, America will be subjected to the airing of intelligence sources and methods, to the posturing of mass murderers fully aware of their terrorist star power, to the possibility of mistrial and procedural acquittal, and to an increased threat of revenge attacks against New York.

Good gravy, grow a pair will you, you coward.

Holder seemed to concede this last complication by asserting that New York is “hardened” against possible terrorism. If I were a New Yorker, that would fall into the category of chilly comfort.

I actually am a native New Yorker, born and bred.

You know what was “chilly comfort”? Condoleezza Rice saying, “no one could have anticipated” after the “My Pet Goat” reader-in-chief dismissed the CIA briefer who tried to warn him that al Qaeda wanted to fly planes into buildings, telling the briefer he had covered his ass. You know what else was chilly comfort? Watching Shrub take a photo op with NYC firefighters and then treating Homeland Secuirty funding like some kind of pork barrel slush fund and sending it to places which have never shown up in any terrorists’ plans just to bolster support in red states.

Gerson contends that Holder’s decision to send some for civilian trial and others for Military Comission trial is “ memorable for its incoherence”.

Wrong again! He sent a trial relating to a military target to a military court and trial related to civilian targets to a civilian court. There is logic in that, not incoherence.

Gerson thinks that KSM’s only goal in life is to make a dramatic speech and that sending him for civilian trial will grant KSM his wish.

KSM’s words at other hearings would be reported in the press anyway. There is no extra coverage just because it is a civilian trial. What’s Gerson’s point?

It is not typical that Holder’s immediate predecessor, Michael Mukasey, has called the plan for trials in Manhattan a risky “social experiment” that will raise the risk of attack “very high.”

I don’t really understand what he means by “social experiment.” Having presided over one of the trials, Judge Mukasey well knows that Janet Reno and her predecessors at DOJ managed to investigate, arrest and prosecute terrorists just fine. Holder evidently thinks that the current generation of AUSAs is up to the job.

Does Gerson fear that SDNY has also been infiltrated by Monica Goodling’s Regent Law grads? Is he suggesting that the SDNY Hiring Committee’s standards slipped during the Bush years, as they did in some other offices? Now THAT would be upsetting. No one thus far has suggested that SDNY was infected with political hackery alleged at other USAOs. Is Gerson breaking a scoop? If so, he really buried his lead at the very end of his article. Or maybe he is just slandering the most respected USAO in the whole country? You decide.

Now for the best hyperbole of the whole damn article:

Something unique and frightening is taking place: The ACLU is effectively being put in charge of the war on terrorism.

I DID NOT MAKE THAT UP. That is a real quote from the article. If I were going to make up a fake quote, I lack the imagination to think of something that inventive.

The ACLU has no, zero, zilch role in the war on terror. They don’t investigate terror, they don’t prosecute it, they don’t do anti-terror disruption work, NADA. They simply defend suspects and/or litigate points of Constitutional law. Seriously, dude, you gotta’ stop making stuff up.

Now for topsy turvey world, Gerson says the following AS IF IT’S A BAD THING:

Holder’s liberal principles have become “detached” from the real-world struggle against terrorism: Let justice be done, though the heavens, and buildings, fall.

Dude, you’re quoting /paraphrasing Lord Mansfield! And, yes, that’s what they teach us in law school. It’s a virtue not a vice. Ya’ big silly, you. Here’s the full quote:

The constitution does not allow reasons of state to influence our judgment. God forbid it should! We must not regard political consequences, however formidable they might be; if rebellion was the certain consequence, we are bound to say, Justitia fiat, ruat coelum—Let justice be done, though the heavens fall.
—Lord Mansfield, Chief Justice of England (Rex v. Wilkes, 1768)

This rule of law thingy? It’s been around for a while. In fact, legend has it that that Mansfield cribbed that quote from ancient Rome.

Finally, Gerson reveals the real motivation driving this op-ed:

Wartime American presidents such as Abraham Lincoln and Franklin Roosevelt have understood that the Constitution is not a suicide pact. So enemy combatants consistently have been judged by a different and harsher legal standard than American citizens.[1] Whatever his initial assurances, Holder does not believe America is at war with terrorists.
Even worse, he seems determined to undermine those who do.

Oh, so now you are into mind reading? Do you also do card tricks?

NOW you reveal your real gripe, Gerson; Holder is undermining the chicken hawks who holler “Terra! Terra! Terra!” every time they want to shred another part of the Constitution. You are afraid that a live demonstration that all of Bushco’s unconstitutional (ahem, also likely highly illegal) behavior wasn’t even necessary, will reveal to the American public what cowardly charlatans you are.

You just don’t like getting caught.

[1] Note to WaPo editors. I think there should have been a semi colon after the word “pact”, the string of words right after that, beginning with “So”, is a dependant clause; if I recall Sister Priscilla’s sentence diagramming class correctly.

Lady still in waiting: OLC nominee Dawn Johnsen

Marc Ambinder has one of the most thorough discussions of Greg Craig’s ouster I’ve seen so far. It claims (Eric Holder’s public statements notwithstanding) that Craig wasn’t ousted for his “idealism” on national security…

The notion that the President was dissatisfied with Craig’s handling of the Guantanamo Bay closure has reached the level of an accepted urban myth, even though it is not true. This may be Craig’s legacy — and it may serve him well with his allies on the ideological left who are eager to portray his departure as evidence that Obama rejects a new national security paradigm.

Rather, he was ousted because his focus on such issues distracted him from things like Senate confirmations.

The White House was also dissatisfied with Craig’s handling of political appointments, believing that Craig should have spent more time working with the Justice Department and with Congress to force through some of the President’s most eagerly-awaited principals, like Dawn Johnsen, whose nomination to be head of the Justice Department’s Office of Legal Counsel still languishes. The issue of nominations is especially sensitive for the president, a constitutional law lecturer in his former life. [my emphasis]

As a threshold matter, let me agree that Bob Bauer will be much more successful at ramming through nominations, which if we’re going to reclaim the judicial system from the mess that the Federalist Society and Alberto Gonzales’ DOJ made of it, is critically important. Bauer’s a fierce partisan unafraid to call out Republicans on their partisan grand-standing. I look forward to his role in nominations.

That said, Ambinder does give evidence of such a split.

It is true that Mr. Craig and Mr. Emanuel did not always see eye to eye. It was Craig’s importuning that may have convinced the president to release Bush-era Justice Department memorandum that sanctioned torture.

“This is what you were elected to do,” Craig told the president In one Oval Office meeting.

Emanuel worried about the political repercussions of a first-term young Democratic president who would appear to be thumbing the eyes of the national security establishment. Craig won the round.

Which, at the very least, ought to make you ask: even accepting the premise that this was all about Craig’s management problems, why was it handled in this way? Why was it clear to everyone outside the White House–at the time when, Ambinder claims, “the president’s staff appeared to be ready to give Craig a second chance”–that there was this animosity between Rahm and Craig? Why was that animosity always framed in terms of Gitmo and torture? If “the president’s staff appeared ready to give Graig a second change,” why did leaks that looked remarkably like leaks from the President’s Chief of Staff continue unabated? Why did that leaker turn this into a public issue, rather than just handling it quietly?

If the White House is ousting people for bad management, and the Chief of Staff spent the last three or four months leaking about Craig’s imminent departure rather than implementing that imminent departure, then why isn’t Obama also ousting the Chief of Staff, who turned the White House into a petty sniping war instead of managing it like an adult?

Rahm may want to blame Greg Craig that Dawn Johnsen hasn’t been confirmed (a nice sop to the liberals suspicious that Craig’s ouster was over torture). But in doing so, he is making it clear he’s to blame for turning the Craig ouster into a fiasco.

Next! (photo by sixes & sevens)

I’m not amused that the Wall Street Journal solicited an op-ed attacking the decision to try KSM in civilian court from one of the people–John Yoo–with the biggest conflict on such a decision. It’s yet more proof that Rupert Murdoch is engaged in a partisan pursuit, even with the WSJ.

But I am amused at the way John Yoo dismantles his own argument. Take these two claims, for example:

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

[snip]

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.

The first claim suggests the prosecutors will have to reveal all the information they’ve got against KSM. That’s a lie, one that presumably Professor Yoo knows is a lie. Eric Holder has made it quite clear that there is some set of evidence–much of it not public yet–that should be enough to prove KSM’s guilt, independent of all the information they collected pursuant to Yoo’s opinions authorizing torturing KSM.

And I highly doubt that Yoo’s really worried about revealing the details of other al Qaeda figures. We’ve already worked our way through about seven new generations of “al Qaeda Number Threes” since we captured KSM, so I doubt the network looks anything like it did when KSM had first-hand knowledge of it. Besides, if after eight years of waging full-scale war against al Qaeda we haven’t captured these people, then chances are we either won’t or can’t.

You know–can’t. Like Osama bin Laden.

Of course, what John Yoo is really worried about are precisely those sources and methods: that is, torture. He’s worried that prosecutors may have to reveal the details of the torture they did to KSM.

So turn now to Moussaoui. What Yoo is really talking about when he invokes the length of Moussaoui’s trial is his demand to interview–or in some way introduce evidence from, disproving the charges against him–top al Qaeda detainees: Abu Zubaydah and Ramzi bin al-Shibh among them.

The delay, of course, came from the Administration’s refusal to turn over that evidence, much less to allow Moussaoui to interview them.

The delay came, at least partly, because the CIA was busy destroying tapes that might have shown that prosecutors had the wrong charges against Moussaoui.

The delay, in short, was not because of anything Moussaoui was doing. It was because of things CIA was doing to protect Yoo, among others.

Now it’s conceivable that KSM would try to call Abu Zubaydah to testify at trial; but now that we all know Abu Zubaydah was tortured on Yoo’s advice, there’s no big reason to prevent KSM from introducing evidence from AZ.

Now that Yoo’s crimes have been exposed, there just isn’t going to be the hold-up created over the need to introduce evidence from those who might exonerate KSM or the others (and AZ did not, apparently, do so).

But there’s one further premise that makes this entire argument wrong. Yoo’s concerns about the exposure of torture-related information–to the extent that they might be valid–are all premised on the notion that the only information we got is so secret that introducing it at trial would violate sources and methods. Aside from the issue of competency hearings (which I think does risk exposing details on torture), torture (and illegal wiretapping–but it wouldn’t be illegal against any of these terrorists) would only be exposed if that’s the only kind of evidence the government has.

And Eric Holder is convinced there’s plenty that comes from clean sources.

John Yoo pretends he knows the universe of information on KSM. His argument suggests that the only evidence came from illegal or highly sensitive means.

What the trial will likely show, instead, is that there was a great deal of information already available before they started torturing KSM. It’ll show that the KSM expert in FBI–who we know was never allowed to get close to the Yoo-sanctioned torture sessions–knew much if not all of the stuff that KSM was blabbing away after being waterboarded the 183rd time.

That’s the real risk for Yoo: not the illegal actions that the trial will expose. But how much evidence there was independent of Yoo’s little torture shop.

Michael Isikoff asked one of the key questions about the conduct of KSM’s trial in a civilian court: whether or not he would be able to enter evidence of his torture into the trial. Holder basically answered–though he didn’t say it explicitly–that the charges and the prosecutions evidence will be designed such that the evidence of KSM’s torture will not be directly relevant.

United States Court House in Lower Manhattan (photo by wallyg)

MSNBC has quite a scoop [now confirmed and expanded upon by numerous sources, including Marcy]; they are reporting that Attorney General Eric Holder is set to announce that “Khalid Sheikh Mohammed and four other Guantanamo Bay detainees will be sent to New York to face trial in a civilian federal court”:

Mohammed and the four others — Waleed bin Attash, Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi and Ali Abd al-Aziz Ali — are accused of orchestrating the attacks that killed 2,973 people on Sept. 11, 2001

I think I know why they are being sent to the Southern District of New York (SDNY).

USAO SDNY was the first US Attorney’s Office to open a dedicated anti-terror unit. That unit was the brainchild of Dave Kelly and was started with Kelly and Pat Fitzgerald as co-unit chiefs. Mary Jo White was US Attorney at the time and really gave the unit a lot of support.

After the murder of Meyer Kahane, of the Jewish Defense League, documents and other physical evidence belonging to El Sayyid Noasair indicated that there was a wider plot to kill other prominent people and to blow up American landmarks. Initially, the plot seemed too over-the-top to be believable, an act of fantasy by a disturbed mind.

However, after much memo writing to DOJ, SDNY was able to begin an investigation to see if any of these plans were even feasible. It turned out that not only were many of these plans feasible–they would work from a demolitions and engineering standpoint–steps had been taken by other individuals to implement these plans. Understand, this investigation took years and years to do and, as far as I know, is probably still ongoing.

During this investigation, the first WTC bombing happened in 1993. The work of the SDNY counter-terror unit and the Joint Terrorism Task Force (JTTF), in unraveling the threads of these plots, made identification and conviction of the plotters possible. It also made possible the disruption of the Millennium Bomb Plot set for 2000, and the “day of terror” plot in which the Blind Sheik Omar Abdel Rachman planned to blow up all of New York City’s bridges and tunnels (he had some weird idea that blowing up the tunnels would somehow flood Manhattan).

As a result of all of this, SDNY has evidence rooms full of stuff about the various plots. Including a plot called “Bojinka,” which involved blowing up planes, and a laptop belonging to Ramzi Yousef with plans and airline schedules.

All of this evidence is untainted by what happened in Guantanamo. I’m not saying that there will not be issues relating to GTMO that affect this upcoming trial, however, SDNY has the biggest and best storehouse of what should be admissible evidence relating to these men.

Not inconsequentially, SDNY also has a U.S. Marshall’s Office and District Executive’s Office (the DE runs the federal courthouse) that know how to do the security for these kinds of trials, which is a valuable life skill. And New York has a cadre of judges who are familiar with how to handle these trials because there have been so very many terrorism trials already held in SDNY.

Still, I’m thinking that the decision to try it here has mostly to do with all that lovely stockpile of non-Guantanamo-tainted evidence.

Alleged shooter Major Malik Hasan

The New York Times reports that alleged Fort Hood shooter Major Nidal Malik Hasan will have a military trial:

The officials said the Departments of Defense and Justice had decided Major Hasan would be prosecuted in a military court, an indication that investigators believe he acted alone. Government lawyers had said his case might be tried in civilian court if he were believed to have conspired with nonmilitary defendants.

It’s also reported that Hasan’s name turned up in connection with a previous anti-terror investigation, and that some of his conversations were monitored:

Intelligence agencies intercepted communications last year and this year between the military psychiatrist accused of shooting to death 13 people at Fort Hood, Tex., and a radical cleric in Yemen known for his incendiary anti-American teachings.

But the federal authorities dropped an inquiry into the matter after deciding that the messages from the psychiatrist, Maj. Nidal Malik Hasan, did not suggest any threat of violence and concluding that no further action was warranted, government officials said Monday.

Major Hasan’s 10 to 20 messages to Anwar al-Awlaki, once a spiritual leader at a mosque in suburban Virginia where Major Hasan worshiped, indicate that the troubled military psychiatrist came to the attention of the authorities long before last Thursday’s shooting rampage at Fort Hood, but that the authorities left him in his post.

Counterterrorism and military officials said Monday night that the communications, first intercepted last December as part of an unrelated investigation, were consistent with a research project the psychiatrist was then conducting at Walter Reed Army Medical Center in Washington on post-traumatic stress disorder.

In a civilian criminal trial, the prosecution may circumscribe and control what information comes out during testimony by forgoing some charges. It is a difficult choice not to charge egregious conduct, but it may be a necessary trade-off to protect an ongoing investigation. However things are very different in military criminal cases.

In the interest of full disclosure, I am admitted to practice in the Court of Military Justice and in connection therewith did self study the Uniform Code of Military Justice (UCMJ). I have NEVER tried a Judge Advocate General (JAG) case and do not pretend to be expert in the UCMJ, at all.

However, I do know enough to point out that unlike civilian criminal trials, cases brought under the UCMJ provide a much higher level of discovery rights to the defendant than do civilian criminal cases. In JAG trials, defendants get to depose the witnesses. Yep.

Imagine the howling that would go on if a defendant in a regular criminal trial wanted to take the deposition of the cops who investigated the case. The judge would get a hernia from laughing so hard.

Whatever you may think about the lack of a jury as civilians may understand them, the UCMJ does provide the defendant with significant legal rights not available in the civilian legal system. Not only does the defendant have the right to depose witnesses:

(a) At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an attorney competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.

(b) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

(c) Depositions may be taken before and authenticated by any military or civilian authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths.

If there is an investigation prior to charges and specifications being preferred against the military defendant, he can participate in that investigation and cross-examine witnesses and present evidence in the investigation:

(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.

Imagine a civilian defendant asking to have his lawyer cross-examine witnesses in the Grand Jury room. The poor herniated judge would bust his truss from all the additional laughter. (Stop making the judge laugh so hard.)

Why is this significant to you, dear readers? Because it means the defense may give us a glimpse into whatever the heck has been going on with some of those intercepts that NSA and CIA claim are keeping us safe from terrorists. You know, when he deposes those witnesses?

courtesy of mindgutter (flickr)

Cook County Illinois is the gift that keeps on giving. From the aggressive G-Men of the Roaring Twenties to the Red Squads to the original Richard Daley Machine to the Burge Torture Scandals, Chicago and Cook County have a certain reputation for political corruption, police brutality and and prosecutorial misconduct.

A new chapter in heavy handedness has been penned with the current tactics of the Cook County Attorney’s Office taken against Northwestern University journalism students participating in the Medill Innocence Project. From today’s New York Times:

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.

But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves.
…
Lawyers in the Cook County state’s attorney’s office say that in their quest for justice in the old case, they need every pertinent piece of information about the students’ three-year investigation into Anthony McKinney, who was convicted of fatally shooting a security guard in 1978. Mr. McKinney’s conviction is being reviewed by a judge.

Among the issues the prosecutors need to understand better, a spokeswoman said, is whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.

The Cook County prosecutors cite no evidence to support a credible belief there is anything nefarious behind the student journalists’ work. The students work, conclusions and supporting materials are all part of their project report. The prosecutors already have access to all of said pertinent material, as well they should. But what they now want are “grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students”. Here is the actual subpoena. This is information that has nothing whatsoever to do with the students work on the project. “Fishing expedition” would be far too kind of a term.

The only visible purpose of the play by the prosecutors here is intimidation and instillation of a deep chill in the work of the Medill Innocence Project.

From the Medill Innocence Project website:

Protess and his journalism students have uncovered evidence that freed 11 innocent men, five of them from death row. The Project’s work, which has been featured on “60 Minutes,” “48 Hours,” “Dateline NBC” and the front pages of The New York Times and the Washington Post, has been cited for stimulating a national debate on the death penalty.

Former Illinois Gov. George Ryan credited the Project’s investigations, particularly in freeing death row inmate Anthony Porter in 1999, with helping provide the impetus for his moratorium on the death penalty in January 2000 and his subsequent decision to grant clemency to all death row inmates before leaving office in January 2003.

Most of the successful cases Medill has worked on emanate from Cook County. The Cook County prosecutors have motive to match their opportunity; the Innocence Project has repeatedly made a mockery of their shabby work on capital cases, and now they are on the cusp of doing it again in the McKinney case.

Illinois, however, has a state Reporter’s Privilege Act; i.e. a shield law:

§ 8-901. Source of information. No court may compel any person to disclose the source of any information obtained by a reporter except as provided in Part 9 of Article VIII of this Act.

The term “reporter” is defined as:

§ 8-902. Definitions. As used in this Act:

(a) “reporter” means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.

(b) “news medium” means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.

Northwestern University has a world famous journalism school, it will be hard to argue that the students were not working as journalists in the effort and Medill publishes in several formats, including a web based format specific to Chicago known as “Medill Reports: Chicago”. There is also the fact that a former governor of Illinois considered the students “journalists” and their work “investigations”, and used the work as a basis for commuting a series of death sentences. Obviously the Cook County prosecutors are going to argue the Medill project is not covered by the shield, but it is hard to see how the court will find any merit in said argument.

It takes a lot of gumption for the Cook County Attorney’s Office to be questioning the motivation of a group of students seeking honesty and truth when they themselves have spent decades hiding it. Nothing demonstrates the dark heart and soul of the Cook County Attorney’s Office as does the Burge Torture Case, which has exploded back onto the scene from actions of Pat Fitgerald’s US Attorney’s Office after decades of benign neglect and concealment by the Cook County prosecutorial authority. From The Chicago Tribune:

More than three decades after allegations surfaced that Chicago police detectives routinely tortured murder suspects, retired Cmdr. Jon Burge was arrested Tuesday at his Florida home on charges that he testified falsely about the brutality.

The perjury and obstruction of justice counts against Burge mark the first criminal charges in the long-running scandal. But a dozen or more officers once under Burge’s command who have denied under oath taking part in the alleged torture could be in legal peril as well.

The indictment of the 60-year-old Burge breathes new life into a scandal that has had a stubborn hold on the Police Department and the city and involves claims of abuse—electric shock, Russian roulette and suffocation with bags and typewriter covers. The allegations continue to figure prominently in the appeals of dozens of inmates.

Much of the scandal grew out of some of the most brutal crimes. Andrew Wilson was allegedly tortured after his arrest for the murder of two Chicago police officers in 1982. Madison Hobley made similar allegations after he was charged in a 1987 arson that killed his wife, young child and five others. Hobley was sentenced to Death Row, but was pardoned and set free by Gov. George Ryan.

The allegations also raised questions about the conduct of Mayor Richard Daley, who was Cook County state’s attorney in the 1980s when much of the alleged torture took place, and current State’s Atty. Richard Devine, whose office continued to oppose the inmates’ allegations of torture.

Yep, that Richard Daley, the current powerful legacy Mayor of Chicago. The allegations of hideous torture of suspects to coerce confessions and make cases by the Burge crew have been around since the outset, but were willingly concealed and avoided by a Cook County Attorney’s Office that did not want to know or care. The list of alleged malefactors from the Cook County Attorney’s office includes not just Daley, but also his successor Jack O’Malley and numerous other high ranking members.

This is the same office that now has the gall to cast baseless aspersions on the student journalists of the Northwestern University Medill Innocence Project.

Restraining Chair, San Quentin (photo by Casaflamingo)

A new report from the Death Penalty Information Center takes a look at an often-neglected piece of the debate over capital punishment – the financial cost.

The death penalty in the U.S. is an enormously expensive and wasteful program with no clear benefits. All of the studies on the cost of capital punishment conclude it is much more expensive than a system with life sentences as the maximum penalty. In a time of painful budget cutbacks, states are pouring money into a system that results in a declining number of death sentences and executions that are almost exclusively carried out in just one area of the country. As many states face further deficits, it is an appropriate time to consider whether maintaining the costly death penalty system is being smart on crime.

The numbers the study throws around are pretty harrowing. In the most extreme example, California is spending $137 million per year to maintain death row despite having no executions over the last 3 1/2 years. The justification for maintaining death rows in the middle of an economic crisis has become less and less tenable. This is especially true in the wake of revelations about Cameron Todd Willingham, an apparently innocent man who was killed at the hands of the state of Texas in 2004, because so many of the extra costs incurred by the death penalty seek to prevent such circumstances as killing the innocent.

Clearly, eliminating the death penalty cannot solve all of these problems, but the savings would be significant. Where studies have been done, the excess expenditures per year for the death penalty typically are close to $10 million per state. If a new police officer (or teacher, or ambulance driver) is paid $40,000 per year, this death penalty money could be used to fund 250 additional workers in each state to secure a better community.

The study estimates that the total costs one death penalty trial are as much as $1 million dollars extra to the state over a trial where the maximum penalty is life in prison without the possibility of parole. And that’s a low estimate; the number varies depending on the state and its pay scales.

A national poll of police chiefs, released in the report, shows that the death penalty ranks at the bottom of their list of priorities on how to allocate criminal justice resources. In a revealing statistic, 69% of police chiefs agree that politicians support capital punishment simply to portray themselves as “tough on crime.”

The report is available here. CNN has a report as well.

(photo by futureatlas)

The Supreme Court has decided to rule on whether federal judges can mandate the release of detainees at Guantanamo Bay who represent no terrorist threat into the United States, over objections from the Obama Administration.

The case could set up a major separation of powers battle before the court, which decided more than a year ago that detainees had the right to challenge in federal court their continued detention. But it also might be avoided if the administration finds a way to relocate the prisoners involved in the case, a group of Chinese Muslims known as Uighurs.

The Bush administration agreed that the men, captured in Pakistan and Afghanistan in 2001, were not enemy combatants. However, returning them to their home country would put them at risk of torture.

A federal judge ruled that the 17 prisoners could be released into the United States. But a three-judge panel of the U.S. Court of Appeals for the District overruled, saying only the legislative and executive branches had the power to exclude or admit foreigners to the country.

The Obama administration had asked the Supreme Court not to review the decision.

This reads more like an immigration case than a civil liberties case. However, the Administration has delayed justice for the Uighurs, preferring to find countries willing to take the remaining detainees instead of allowing them to settle in the US. This has hampered the prospects for closing the prison at Guantanamo within a year, as the President promised. In addition, the remaining Uighurs have essentially been unlawfully imprisoned in contravention of a court order since February.

The last time the Supreme Court agreed to hear a case on Obama’s detention policy, in the case of Ali al-Marri, the White House quickly moved to transfer him to a civilian court, making the case irrelevant. One suspects they will try to swiftly transfer the Uighurs abroad now and pre-empt this case, Kiyemba v. Obama, as well.

A group of retired generals and groups like VoteVets released an ad today calling on Congress to “lift the cloud” hanging over Washington by closing Guantanamo now (they have a petition drive at CloseGitmoNow.org). So there is pressure on both the legislative and executive branches to reach a solution to the Guantanamo problem.