Monthly Archives: October 2011

M.L.K. & U.S.S.C.

A week ago, I was present for the dedication ceremony for our newest national monument – the Martin Luther King, Jr. Memorial on the Mall. That’s one of the many reasons I really enjoy being here in DC – the unique experiences like this one. It’s not every day that you get to hear the president dedicate a new national monument. Some of the speakers I heard: Tommy Hilfiger, Al Sharpton, Aretha Franklin, Stevie Wonder, Ken Salazar (Interior Secretary), and President Barack Obama. It was a very special occasion- one that I’ll remember for a long time. The day before, I sat on the steps of the Lincoln Memorial where King stood and listened to his “I Have a Dream” speech on my iPod. It reminded me how recent this history is and how far our country has come just within a few decades.

Two other Supreme Court issues have come up the past few days. First- the case concerning the Stolen Valor Act. In 2005, the Congress and President Bush made it a federal crime to lie about one’s military service- to claim you served when you didn’t, to claim you earned a medal that you didn’t, etc. At first, most people seem to agree with the thrust of this law, but upon reflection, it begins to seem quite troubling. The law made it a crime to simply lie, which not only is a dangerous precedent but also in conflict with the First Amendment. This isn’t fraud or false impersonation or defamation or slander or libel; it’s simply lying without hurting or defaming anyone else. It’s a slippery slope indeed to allow the federal government to criminalize lying, and the Supreme Court should hold the law to be unconstitutional, dangerous, and a direct attack on free speech.

Second- I attended a moot court this week for the State’s argument in Missouri v. Frye, a case about whether an attorney’s failing to notify his client of a plea bargain constitutes ineffective counsel that implicates the Sixth Amendment’s right to counsel provision. Missouri’s top three attorneys were there- the Attorney General, the chief criminal prosecutor and the chief civil attorney (Solicitor). The AG argued for the state against a panel of GW Law professors simulating the Supreme Court, and he didn’t seem to fare well. He basically argued that the Sixth Amendment’s protections only applied to issues that could conceivably come into a trial, but the amendment clearly states that a defendant has a right to counsel during the entirety of a criminal prosecution, not just the trial. He argued that the Supreme Court shouldn’t overturn Missouri law and precedent on plea bargains, but if the Sixth Amendment does apply, then it trumps Missouri law. He asserted that his own experience as a prosecutor in Missouri trumps the Missouri Court of Appeals’ opinion of Missouri law, which the panel of professors didn’t buy into either. In sum, it looks like Missouri has a tough argument here and that the right to effective counsel does extend into simple notification of a plea bargain offer.


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My Generation

Caveat: By no means am I claiming to speak for my generation or even represent a small portion of us. This is just my take on certain things/ideas we share, and some personal opinions of mine.

I’ve had this conversation with a few people, some my own age and some older, recently, so I wanted to post about it here. I’ve been asked what my generation’s shared experiences are, and what some of our shared ideas and notions are.

Politically, we came into political consciousness on 9/11/01. I have no personal memory of the Clinton presidency and only vaguely remember the 2000 election. Certainly at the time (I was 11), I didn’t care what was going on.  But we all, probably without exception, remember where we were the morning of 9/11 (7th grade Geography class with Mrs. Rye, for me), and suddenly, in that collective moment, we realized what we already knew intellectually- there was this incredible world around us and not everyone is like the people we’ve grown up around. And since 9/11/01 – since we became aware of many of the political dynamics surrounding us – we’ve been at war. Our country has been fighting abroad the entirety of our political lives. I don’t remember a time when we weren’t at war. I don’t remember airports without the over-the-top security. I don’t remember when people trusted each other (especially those who look different than they do). The only other united shared experience we have is that I think a lot of us remember where we were when bin Laden was killed. That night was probably as close as my generation will come to a VE or VJ Day. That was as close as we will come to victory. We will eventually stop combat in Iraq and Afghanistan, but it will just be unsatisfying. Wars aren’t what they used to be.

Culturally, my generation grew up watching the same Nickelodeon shows and Disney movies, and those shared memories unite us still today. We grew up with characters like Harry Potter and Andy in Toy Story, who were actually our age as we were reading about them or watching them, allowing us to strongly emote with them. I’m not sure if any previous generation had this same experience, or if the current one is either. That may be unique to us.

Politically, on our more personal beliefs, maybe this is naive, but I have seen that my generation shares a wide dearth of opinions. Not everything of course – and there are plenty of extreme conservatives and extreme liberals – but there is something of a collective identity it seems, at least compared with our parents’ generation. Fiscally conservative and socially liberal seems to be the consensus. Socially, we widely agree on most things- things that are just assumed among us- like race doesn’t divide us, sexual orientation shouldn’t be treated differently in any way, etc. Personally, as my political beliefs were developing, I knew I wasn’t a Republican because of George W. Bush’s presidency, and I affirmatively knew I was a Democrat because of Barack Obama. For many of us, the election of Obama is something we’ll always remember- he seemed to embody something for which we were searching, something we had no memory of since our entire political consciousness was taken up by Bush. He embodied this moderation and sensibility we longed for. As invested as I felt in him, his election night was a moment of sheer joy- a vindication of all opinions and my disgust of the previous 8 years of Bush.

So, that’s all for now. I have a big memo due tomorrow and a Civil Procedure midterm on Tuesday, but then we’re on Fall Break from Wed-Fri. Hope I can get to do something fun then; school’s been very intense lately.

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Awlaki, Jobs, and Karman

I’m using today’s post to talk about three people: Anwar al-Awlaki, Steve Jobs, and Tawakkol Karman.

First, this week it was announced that the President had authorized the killing of Anwar al-Awlaki, an American citizen (born in New Mexico) and an al-Qaeda fighter and inspiration for Islamists around the world. He was commonly known as the bin Laden of the Internet. To be brief, I wanted to comment on the legality and the morality of his killing.

In theory, and what I truly believe, it was wrong. As an American citizen, Awlaki unambiguously is protected by our Constitution. The 5th Amendment provides that no person (read citizen) shall be deprived of life without due process of law. Awlaki’s killing by an unmanned drone strike without judicial review or a trial or hearing of any kind clearly, unambiguously, is contrary to this provision of the Constitution. The President had Awlaki placed onto the list of people for targeting killings due to his horrendous acts across the world, but it is (almost) unprecedented to make an American a target for the American government’s targeted killing. International law provides for the killing of individuals who pose an imminent danger to a country, but international law does not trump the protections of our Constitution to our citizens. Our Constitution does provide a perfect solution to this, though: treason. Awlaki would clearly qualify as treasonous, but it requires a trial and witnesses and due process, the cornerstones of American justice. The end result would be the same, though: he would be put to death. I guess I’m just not comfortable with my government unilaterally, without judicial review or act of Congress- just the President and the NSC choosing to so do- killing a fellow citizen, no matter how odious his actions were. This is a very slippery slope, indeed.

In practice, though, his killing can be justified, quite simply actually, I believe. Although he retained his citizenship, Awlaki was an enemy soldier killed in the normal course of this fundamentally new type of war. If an American citizen had joined enemy forces during WWII, for example, and had been killed in the normal course of battle, there would be no objection. That simply would have happened. Although extra-judicial targeted assassinations are fundamentally different than conventional warfare techniques, these new strategies of modern war have become so fundamental as to enter the category of justifiable and legitimate war activities. I believe the same argument can be made here. In any event, this is a wonderful topic to think about and debate.

Second, Steve Jobs died this week, but he had an incredible life. Many people have quoted his commencement address at Stanford as one of his best and final expressions of personal worldview, but I think more can be gleamed elsewhere. “Only those who are crazy enough to believe they can change the world are the ones who do” – Apple’s Think Different campaign. Jobs took a company from the brink of bankruptcy to being the most valuable company in the world and transformed the way we live our lives. His tools empowered people everywhere to connect with each other and change the world. Not a bad legacy. Plus- he was given up for adoption at birth, the son of a Syrian graduate student, dropped out of college, and was fired from multiple jobs. Just imagine the big what if- what if the U.S. had not allowed Jobs’ father to immigrate to the U.S. from Syria? We wouldn’t have Apple, the Mac, the iPhone, iPod, iPad, or any of the other innovations Jobs is responsible for- things as elemental as the fonts available on your computer and simply making the computer a personal electronic device for the masses, not simply something for tech nerds. Jobs also brought us Pixar, responsible for so many of the great animated movies we have enjoyed, and he has enriched our lives in uncountable ways. I absolutely loved his parting words to the Stanford class, which I’ll repeat here as wonderful advice for a rich and fulfilling life: Stay hungry; stay foolish. What a life, Steve Jobs. Thanks for everything.

Finally, Tawakkol Karman is one of three winners of the 2011 Nobel Peace Prize, along with Liberian President Ellen Johnson Sirleaf and Liberian activist Leymah Gbowee. I’ll admit I did not know much about her before the Prize, although I had heard her name. With her Prize, she has become a standard-bearer for the Arab Spring and for the role of women across the Middle East. She is a liberal Islamist who represents the hope in the West that Islamic movements will play a positive role in rebuilding Arab societies (and shows how secularists and Islamists have joined forces in favor of democracy; her party in Yemen includes the Muslim Brotherhood there). She stands as an example of the complexity of Islamic political movements, which are often misperceived in the West as monolithic and menacing, and are likely to play a powerful role in any governments that emerge from the Arab Spring, and as an example of the failure of the idea of the clash of civilizations and of how Islamists can be advocates for shared values and be accepted on the international stage.

It had become widely speculated that some of the bloggers and activists in Egypt, Tunisia and Libya could get the prize (such as Wael Ghonim). Some even proposed that social media companies like Facebook and Twitter should win as powerful tools of mass communication during many of the Arab Spring uprisings. As important as those tools were in the revolutions we have seen, ultimately the movements are about people, not technology. Karman’s Nobel Prize creates an opportunity for the world to refocus on the urgent need to push for a meaningful political transition in Yemen and could potentially actually bring about peace.

I’ll close with Karman’s own words, what she said in response to winning the award: “This is a message that the era of Arab dictatorships is over. This is a message to this regime and all the despotic regimes that no voice can drown out the voice of freedom and dignity. This is a victory for the Arab spring in Tunis, Egypt, Libya, Syria and Yemen. Our peaceful revolution will continue until we topple Saleh and establish a civilian state.”

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Supreme Court supplement

One additional case that I forgot in my previous post:

Golan v. Holder raises a very interesting question about the constitutionality of restoring copyright of foreign artistic works that were previously in the United States public domain by act of Congress. This will affect millions of pieces of work, including a lot of H. G. Wells’ work and Stravinsky’s work (The Rites of Spring, etc). The argument is that it is a bedrock principle of copyright law that once a work enters the public domain, it remains there; otherwise, it would violate the copyright clause in the Constitution that only secures protection “for limited Times”. It also, in effect, raises 1st amendment questions as to the performers who have used these works or who will use these works, since they are currently in the public domain.

Again, this is a interesting and unique case this term for the Court. I’m looking forward to getting all these decisions within the next year.

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The new Supreme Court term

Since I’m in Washington for law school, I’m going to do my best over the coming weeks to watch oral argument in front of the Supreme Court. The Court doesn’t sit during the summer months, when most people are here for tourism or when I was here working summer jobs, so not too many people have the opportunity to get to see oral argument. Seating in the Court is incredibly limited, especially to the general public, so getting a seat often requires standing in line from about 5 am on the day of argument. I’m going to do it at least once, though.

Also, today, Sunday, Oct 2, is the date of the Red Mass, the traditional service on the Sunday before the opening of the Supreme Court term, attended by (most of) the justices and many other politicians, sometimes even the president. It’s also just a normal Sunday morning mass, open to the public.

So, with the Court opening for argument on Monday, I thought I’d just summarize some of what I’ve gathered that the Court is facing this Term and my own take on how they are likely to come out on the issues. It seems to be a very active and diverse list of cases that have much more importance on big matters of public debate than the past few terms have had.

1. The justices are being asked to decide the constitutionality of the individual mandate of the Affordable Care Act. Essentially everyone with a stake in the game just wants the Court to decide, since everyone knows it will come to that anyway. Instead of deciding on the merits of the case, however, the Court could decide on a procedural issue: the Court could say that the plaintiff lacks standing to sue, basically since no one has been harmed by the fee imposed if you don’t buy health insurance since it hasn’t gone into effect yet. Our justice system (usually) requires that parties come to a court with an actual injury, not merely the threat or knowledge of one. On the merits, though, my bet is on the Court upholding the law in its entirety as a proper exercise of Congress’ ability to use any “necessary and proper’ means to regulate activities that substantially impact interstate commerce (i.e. the nation’s health care system). Justice Kennedy’s opinion will likely become law here; he will likely write the opinion for whichever side he comes down on. But I see him upholding the law. It may also be possible to get Roberts or another justice to uphold it. We’ll have to see. One other side note: so, does this mean that Congress could require everyone to eat three pieces of broccoli every day? In theory, yes. But besides the impossibility of actually enforcing such a law, that law would be so uncommonly stupid and such an onerous burden on the people that the solution would be a political one: elect new Congresspeople and a new President to repeal the law. A political solution, not a judicial one, is the best option here.

[I’ll be shorter from there.]

2. The Court will examine the ability of states to enforce strict immigration laws and whether this conflicts with the Constitutional principle of federalism by preempting an inherently federal realm of control: immigration. My instinct is that the Court will lean toward keeping immigration policy and enforcement at a federal level.

3. The Court will look at a new affirmative action case from the University of Texas, where officials take into account a student’s race to try to make the student body more reflective of the state’s population. Justice O’Connor was the critical vote last time for affirmative action in college admissions (but against hard quotas), so we’re not sure how the Court will come out here.

4. The Court has a case called Zivotofsky v. Clinton, which involves a statute in which Congress directed the State Department to record the birthplace of U.S. citizens born in Jerusalem as “Israel” on U.S. passports. It presents major separation-of-powers questions that ask whether the executive may ignore Congress’s directions. The law basically declares that Jerusalem is part of Israel and that is to be put on passport designations issued by the State Department, which says the United States has no position on whether Israel has sovereignty over Jerusalem.

5. The GPS case: United States v. Jones: Do police need a warrant before attaching a GPS device to a person’s automobile to track him 24 hours a day for an indefinite amount of time? It is basically asking whether the blindingly fast pace of modern technology has reshaped Americans’ notion of privacy. This 4th amendment case is particularly interesting to me because normally, police are allowed to follow you and observe your public movements, but it requires them to actually do that (the scenes from old movies where they stake out a guy in the squad car). This is novel because now they just throw a device on anyone’s car (yours, mine, your neighbors, someone who disagrees with the government) and can watch his movements indefinitely with no further action. No probable cause. I hope the Court sides with privacy here over the government’s argument that they have this power. I’m generally not a fan of slippery slope arguments, but things like this would be the start of a slide toward a security state “1984” style.

6. There is a case on whether the Federal Communications Commission’s standards for indecency on television are too vague to meet constitutional standards. Also the court may wade into the FCC’s ability to regulate the Internet, another huge emerging issue with drastic impacts on your everyday life.

7. Another really important criminal case about strip searches: Whether jails can strip-search all newly booked inmates without evidence that they are concealing contraband. Another 4th Amendment case on whether a strip search is a reasonable search if the government can’t show probable cause. I hope, again, the Court sides against the government’s power here.

8. Interesting case out of California about pork. No, not political pork. Actual pig meat pork. The court is asked to answer whether California can prohibit the sale of pork made from “downer” pigs, those too feeble to walk before they were slaughtered. I don’t think I have an opinion about this, at least yet, but kind of an interesting case to look forward to.

Finally: 2 things that will likely not be on the docket this year, but will be sometime soon. First, Same-sex marriage: The case most likely to reach the court is out of California from the Prop 8 fight a while ago. Those parties are currently arguing over issues of standing there, so it will be at least a year until the Court accepts any case- and probably longer. Eventually, though, I don’t think there is any legitimate legal argument against full marriage equality. The Court, I believe, will side with advocates for marriage. Second, and related, is a challenge to the Defense of Marriage Act coming from a dispute in which the State of Louisiana refused to recognize the marriage of gay couple in Massachusetts for purposes of adoption of a child in Louisiana. This implicates broad Constitutional questions of Full Faith and Credit, Equal Protection of the Laws, etc. I certainly know where I stand here, but we’ll have to see if the Court takes the case and then where it comes out on it.

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