Obsidian Wings

Dancing In The Dark

Guest post by Gary Farber.  Gary's home blog is Amygdala, and he invites you to read him there.

[Eric Martin: My friend Gary is going to be pitching in for a couple of days as I adjust to the enhanced parenting techniques that my son is submitting me too.  And yes, sleep deprivation is torture.]

On December 31, 2009, three provisions of "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001," aka the "PATRIOT Act,"  sunset and expire.

Bills to reauthorize or amend these three provisions have been moving through the Congressional Judiciary Committees in the past two months.

The three sections are:  

SEC. 206. ROVING SURVEILLANCE AUTHORITY UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978. Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting 'or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after 'specified person'.

This is also known as "the John Doe" provision.

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.

Also known as the section dealing with "national security letters," by which:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities [....]

The third is:

SEC. 805. MATERIAL SUPPORT FOR TERRORISM.

What are these about, and why should we care?, you ask. As the ACLU explains:

Perry and the Politics of Capital Punishment

by publius

Rick Perry has apparently decided to double down on Willingham.  After multiple articles came out documenting inappropriate political pressure on the investigation, Perry came out firing yesterday.  Here's the Houston Chronicle:

Gov. Rick Perry on Wednesday defended his actions in the execution of Cameron Todd Willingham, calling him a “monster” and a “bad man” who murdered his children.

Fortunately, though, the story seems to be getting national legs -- which probably explains why Perry felt the need to further shame himself today.

Here's a question, though, that I've been thinking about lately:   Why exactly is Texas so terrible on capital punishment?  It's an urban, diverse state -- conservative to be sure, but not more so than many other states.  Why exactly, then, does Texas execute so enthusiastically?  Are there structural explanations?

I don't know what the actual origins of Texas's lust for execution are.  But I have an idea of why it continues -- basically, I think it's a function of intra-GOP politics. 

Interestingly, Texas has two "Supreme Courts."  The Texas Supreme Court is the highest appellate court for civil matters, while the Texas Court of Criminal Appeals is the highest court for criminal cases.  Both courts are 100% Republican.  Also, the judges are all elected -- and each one of them runs state-wide.  Thus, even though Texas is only majority Republican, the election structure produces courts that are 100% Republican.

My own pet theory, then, is that capital punishment has become an ideological issue on which aspiring GOP politicians must show party loyalty to get elected and to ascend the intra-party hierarchy.  If, however, they show the slightest hesitancy on executing the inadequately represented, their future in politics is over.

In short, ostentatious support for capital punishment-on-demand is all benefit and no cost for ambitious GOP judges and officials.

What's interesting about the Perry controversy, then, is that it has the potential to change this calculus.  For the first time, an elected official may actually pay a political price for knee-jerk support for capital punishment.  If he does, that would obviously be good in and of itself because Perry is an immoral man.  But it would also open political space for skeptical GOP officials, including judges.

I refuse to believe that every single Texas GOP judge and elected official feels just fine about the Texas criminal justice system.  But, neither can I realistically expect them to ignore political incentives.  If, however, Perry took a big political hit, then maybe that calculus would suddenly change.

That's why I wish Hutchison would go all in on this issue.  Texas has open primaries, meaning I could go vote for her if I wanted to.  And if she got serious about this issue, I think I might.  The Republican primary is going to decide the election anyway.  So it would be nice to have a Republican who got there because of Democratic cross-over votes. 

Certainly better than the alternative.

Your Life is Not Worth Ten Minutes of Perry's Time

by publius

I would like to think that sending a man to die would warrant more than 10 minutes of review by the Governor.  But not in Texas.

The Houston Chronicle adds some more details about how Perry disregarded doubts of Willingham's guilt.  Three days before the execution, Willingham's attorney alerted Perry of a new arson analysis that cast doubt on the conviction.  The ultimate analysis came from a respected arson expert, Dr. Gerald Hurst, who helped exonerate prior death row inmates.

According to the Chronicle, the five-page Hurst report was faxed to Perry at 4:52 PM.  A "few minutes after" 5:00, Perry's office said he would not intervene.  They probably didn't even read it.  The execution occurred about an hour later. 

Perry and the Texas criminal justice system are so enamored of killing people that missing dinner is apparently a greater risk than executing an innocent man.

[UPDATE 11:15:  The Tribune adds more:

Just months before the controversial removal of three members of a state commission investigating the forensics that led to a Texas man's 2004 execution, top aides to Gov. Rick Perry tried to pressure the chairman of the panel over the direction of the inquiry, the chairman has told the Tribune.

More on this article later.]

Perry's Saturday Night Massacre Continues

by publius

Orwell once wrote, "[He] who controls the past, controls the future."  Texas Governor Rick Perry has apparently taken the lesson to heart.  He's now removed a fourth member of the Texas commission responsible for investigating whether Texas (and Perry) executed an innocent man.  It's whitewashing at its worst.

By now, you're probably familiar with the New Yorker article showing that Cameron Todd Willingham was almost certainly wrongly executed for arson and murder.   In 2005, after the execution, Texas established a commission to investigate forensic errors, and the commission started reviewing the Willingham case.  In the course of its review, the commission hired a nationally recognized fire expert who ultimately wrote a "scathing report" concluding that the arson investigation was a joke.  

The expert was originally set to testify about his report on Friday, October 2.  On Sept. 30, however, Perry suddenly replaced three members of the panel, including the chair, against their wishes.  The new chair promptly canceled the hearing.  More recently, Perry replaced a fourth member (he can only appoint four -- other state officials appoint the remaining five members).

What's amazing is not so much that Perry replaced the panel members, but that he felt secure enough to be so brazenly corrupt about it.  It's a sad reflection on the state of politics in Texas that a governor could commit such blatant whitewashing two days before the hearing. 

Of course, his motive is fairly clear.  Perry contributed to the execution of an innocent person.  And the formal recognition that Texas executed an innocent man would trigger a massive political earthquake -- one that would clarify to an inattentive public the utter barbarity and immorality of Texas's criminal justice system.

So yes, I can understand Perry's motives.  But it doesn't change the fact that he is acting in a profoundly immoral way.  The whole thing reminds me of a banana republic dictator clumsily covering up his crimes. 

But in addition to making me mad, I'm hopeful that this story will change some "hearts and minds."  Specifically, I hope that social conservatives (particularly in Texas) take some time to reflect on the implications of the fact that Texas executed an innocent person -- and that Rick Perry is trying to cover it up.  It's hard to think of something that more directly contradicts the "culture of life." 

For this reason, though, it's an area where a political coalition of social conservatives and secular progressives could do a lot of good, if the political will existed.

Salon Redeems Itself

by publius

I'm in the midst of deadlines, etc., but I wanted to note that Salon has published a new essay by Professor Lee Kovarsky, who guest posted here a while back on the Court's most recent habeas decision. 

In light of the recent New Yorker article arguing convincingly that Texas executed an innocent man, there has been a renewed focus among death penalty opponents on conclusively exonerating an already-executed person.  Kovarsky explains, however, why this focus is misplaced.  In short, the death penalty sucks for many other easily-established reasons.

It's a good read.  As a disclaimer, he's also a friend, but you should still read it.

Scalia Makes a Funny

by publius

I'm in the process of summarizing some Supreme Court opinions for an appellate journal. And I came across what is perhaps the best passage in the history of Supreme Court opinions. It's Scalia writing in Republic of Iraq v. Beaty:

But the whole value of a generally phrased residual clause, like the one used in the second proviso, is that it serves as a catchall for matters not specifically contemplated—known unknowns, in the happy phrase coined by Secretary of Defense Donald Rumsfeld. Pieces of Intelligence: The Existential Poetry of Donald H. Rumsfeld 2 (H.Seely comp. 2003).

That's good stuff.

Fair use?

by von

Gird thy loins for some light law blogging.  (Why your loins?  Because that's where the law strikes!  Ba-da-bing!  I'm here all week folks! Be sure to tip your gender-left-unspecified service people.)

So here is today's issue:  What should be the limits on fair use?  It's a question that comes up from time to time, and it came up again in a recent case pitting movie studios against Real Networks.  One of the issues in the Real Networks case is whether a consumer's right to make a copy of a movie for personal use under the fair use doctrine includes a right for a business to create software that allows the consumer to make that copy.  Although the case may be relatively minor in the grand scheme of things, the issue is worth pondering.  Among other things, the Real Networks case points to how the law, however noble or ignoble its intentions, can have consequences that may well be unintended.

A few disclaimers at the outset:  I'm not taking sides in this particular legal dispute.  The issues are more complex than I can possibly describe in a short blog post.  Also, you should not rely on anything in this post as legal advice.  I am not your lawyer!*

So disclaimed, I do think, like others, that Congress should take another look at the laws in question .... because it's not clear that they are up to date.

On August 11, 2009, Judge Marilyn Patel issued a preliminary injunction that bars Real Networks' from selling its RealDVD software.  Judge Patel issued her preliminary injunction under the DMCA (the Digital Millennium Copyright Act). According to Judge Patel's order (at 28-29), RealDVD allows a user to partially circumvent the encryption software for movies stored on DVDs in order to make limited copies of the content.  Judge Patel found that RealDVD likely violated the DMCA (among other things).  She therefore barred Real Networks from selling RealDVD while the case was ongoing.**

To understand Judge Patel's ruling, you have to know that the fair use provisions of the DMCA generally allow a consumer to possess limited copies of protected materials for personal use.  Indeed, this was one of Real Networks defenses.  According to Real Networks, RealDVD's copying software could only be used to make limited copies of movies.  The copies that resulted from RealDVD's process were themselves were copy protected.  In these senses, RealDVD was alleged to be different from typical (and largely illegal) DVD-ripping software, which can allow a user to make unlimited copies of copyrighted movies, upload those copies to the internet, sell or share them, etc.

Effectively, RealDVD argued that it had a right to supply consumers a means to legally exercise their fair use rights.  Think of it this way:  you have a right to eat canned peaches.  Does your right to eat canned peaches imply a right for me to make a can opener and sell it to you?  Or, a bit more on the nose for the Real Networks' case:  If you have a right to do what you want with the peaches in the can, do I have the right to sell you a cannery so that you can not only open your can of peaches, but re-can them as well?  Real Networks said "yes."  

Judge Patel disagreed -- at least, if the peaches in question are subject to the DMCA.  Judge Patel asserted that fair use was not relevant.  Rather, the issue turned on a different provision in the DMCA that barred persons and companies from breaching encryption software, and it was this provision of the DMCA that RealDVD violated.  She explained her reasoning, in part, with the following:

The DMCA did not create a new property right, as Real points out, but it did clearly rebalance the competing interests of copyright owners against copyright users. [Citation omitted.] In so doing, the DMCA tipped the balance towards the copyright owners.  The DMCA makes illegal the act of trafficking in circumvention tools.17 U.S.C. §§ 1201(a), (b). The DMCA prohibits the circumvention of technological measures that guard copyrighted material, but does not prohibit the downstream or end use of those materials after circumvention has occurred. [Citation omitted.]  “It is the technology itself at issue, not the uses to which the copyrighted material may be put.” [Citation omitted.] 

“[W]hile it is not unlawful to circumvent for the purpose of engaging in fair use, it is unlawful to traffic in tools that allow fair use circumvention.That is part of the sacrifice Congress was willing to make . . . .” [Citation omitted.] In accord with 321 Studios, Elcom and Corley [three prior cases], this court finds that the fair use of the copyrighted material by end users is not a defense to, and plays no role in determining, liability under the DMCA. To find otherwise would ignore Congress’ clear directive, as embodied in the statutory text of the DMCA.

(Emphasis mine.) 

I find Judge Patel's reading of the DMCA plausible, although I don't know know whether it will ultimately prevail.  And I think that there are plausible arguments that, even if Real Networks did not violate the DMCA -- i.e., Judge Patel's ruling above is wrong -- Real Networks may have violated one or more terms of its license agreement. (The breach of license issue is one that most commentators have ignored, but it is also a part of Judge Patel's ruling.) 

Yet, the question:  if DMCA forbids companies from producing products that allow consumers to exercise their fair use rights, how real are those rights?  Has the DMCA kept up with technology?  Because it's not clear to me that "hard" media distribution channels - tapes, DVDs, even Blu-Ray -- are going to have a long shelf life .... particularly in light of on-demand, distributed network, and streamed media channels.  Or the iTunes store, for that matter.

Some enterprising Congressional aide might want to look into the issue.

*Why these disclaimers?  Well, I chose to blog pseudonymously, but we have a pretty bad record here at ObWi at getting others to respect our choices.

**That's an important point:  Judge Patel issued a preliminary injunction.  Thus, her order is not necessarily her last word on the dispute, although it would be unlikely for her to reverse herself.

He Shoulda Armed Himself

by publius

As you may have read, a Milwaukee mayor recently got beaten with a metal pipe while attempting to help a woman being attacked.  Apparently, this mayor had favored strict gun control efforts in the past.  The mayor's reasoning was the dense populated urban areas call for different restrictions than less populated places. 

Radley Balko writes:

But even in more populated areas, it might be helpful to have a pistol if you happen to be attacked, or see someone being attacked, by an assailant armed with a lead pipe. Or worse.

Somehow, I doubt that’s the lesson Barrett will take from this.

True, that might be helpful.  It might also be helpful if the lead pipe doesn't transform into a gun, and if the beating doesn't transform into a gunshot to the head.  All that would also be helpful.

That's my critique of arguments like these (and we heard them after the Virginia Tech tragedy).  Pro-guns rights advocates assume that more guns mean more safety.  But more guns create new dangers of their own.  You can't just assume a world where the mayor alone is armed.  Any argument that assumes the mayor will be armed must simultaneously assume that the attacker will be armed too.  You have to start with this premise, and then we can have a reasonable debate from there.

This has been your annual gun post.  You've been a great crowd, and we'll see you again in 2010.

The Davis Tremor

by publius

The following is a guest post from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law, who I discussed these issues with yesterday and who knows this stuff inside and out. In light of yesterday's great thread, I thought you might enjoy.  It spells out the problems with Scalia's position in ways I can't.  One interesting point he raises, for instance, is how DNA evidence poses a fundamental (and I'd say fatal) challenge to Scalia's position.
______________________

On Monday, the Supreme Court handed down an extraordinary three page order directing a federal district court in Georgia to determine whether newly-discovered evidence would establish that Troy Davis did not commit the murder for which he was convicted and is to be executed. The order provoked an explosive response from Justice Scalia, who wrote in dissent that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” He characterized the federal proceedings in Georgia as a “fool’s errand.” Justice Scalia’s dissent sparked considerable confusion and anger, with many outraged at the thought that he endorsed the execution of an innocent man.

The decision is stunning for two reasons: (1) for the procedural posture in which the Court made it (granting an original habeas petition) and (2) for the substantive legal possibility the original habeas grant implies (that a “freestanding” claim of “actual innocence” could be a basis for federal habeas relief). Explaining why this ruling is so important, and doing so in terms that non-habeas specialists can understand, is a daunting task that I execute very imperfectly below.

BACKGROUND

Davis was convicted in Georgia state court for murdering a police officer. After Davis was convicted, he filed a first federal habeas petition, alleging a variety of constitutional violations. Relief on that petition was denied. (Note: for the purposes of this discussion, a habeas petition is filed in federal court, and tests the constitutionality of a state prisoner’s conviction or sentence.)

Davis had been arrested after a highly publicized manhunt, and seven of the nine witnesses testifying against him have now recanted their testimony. Another man has admitted to approximately four other people that he – not Davis – committed the murder. Davis filed a second (“successive”) habeas petition, alleging a “freestanding” innocence claim – a naked claim that he is not guilty and that is not accompanied by an allegation of some other constitutional violation (such as ineffective assistance of counsel or the prosecution’s failure to disclose exculpatory evidence).

In 1996, Congress severely restricted the circumstances under which state prisoners could file successive petitions. One restriction requires the prisoner to seek “authorization” from a federal appeals court before proceeding on the merits of the claim in district court. Another restriction bars the Supreme Court from using a “writ of certiorari” to review that authorization ruling. Certiorari forms the basis of the Supreme Court’s jurisdiction to review a lower court. Certiorari is, by extreme orders of magnitude, the most frequently-invoked authority for reviewing lower-court decisions. Ninety-nine percent of the Supreme Court cases that law students read are decided on certiorari review.

Two Readings of Scalia

by publius

The Supreme Court did a rare thing yesterday -- it ruled favorably on an original writ of habeas corpus (one that is initially filed at the Supreme Court).  Specifically, it ordered a district court in Georgia to review the defendant's "actual innocence" claim.  Original writs have been summarily rejected for decades.  This is a rare, strange bird we're seeing.

Scalia dissented.  And a commenter asked:

I would be very much interested in any thoughts you have regarding Scalia's recent dissent in a Georgia death penalty case in which he argues that "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

Is this as insane as it sounds?

The answer is . . . maybe.  I'll explain below the fold (wonky).  And I appreciate the advice I've received on these matters from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law (all errors remain my own though).