Legal Memo-random

Atrios is reporting, via the Guardian, that fingers are starting to point towards Karl Rove as the man responsible for outing Valerie Plame as a CIA operative.

Of course, this is from the Guardian, and the facts just aren't as straight forward as I like them to be (ie, still too many people speaking off the record, without revealing their names, etc.). Interestingly, Rove is the individual identified by Plame's husband Joseph Wilson. It is also believed that Rove was fired from George H. W. Bush's 1992 campaign for planting a story with Robert Novak (the very same journalist at the center of this story).

On the other hand, Kicking Ass (the DNC blog) has observed:

The [Justice] department notified the counsel's office about 8:30 p.m. Monday that it was launching an investigation but said the White House could wait until the next morning to notify staff and direct them to preserve relevant material, McClellan said.

A heads up? No need to notify staff on a hot story until the next day to preserve documents (yes, it was 8:30 pm, but somehow I have to imagine that our government never truly shuts down).

Something doesn't smell right here.

The Valerie Plame story (the outed CIA agent) continues to twist in the wind, with a Justice Department investigation underway. Lets not pretend this is a minor story. The worst case scenario is that a senior member of the Bush administration (her husband, Joseph Wilson, alleges that it was Karl Rove) told Robert Novak and possibly 6 journalists on a cold contact call that Valerie Plame was a CIA agent. In this worst case scenario, Plame was an undercover operative, meaning that everything she's worked on is now at risk, our national security could be compromised, her career as an undercover operative is ruined, Plame and Wilson's lives are at risk, and any person Plame worked with in her capacity is now at risk (including CIA operatives and natives in other countries that she worked with). Outing an undercover operative is a federal crime. This is serious business and demands a serious investigation. At the bare minimum, damage control needs to be done to insure that other agents in the field feel secure in their positions.

The story starts to really twist and turn and hedge on Robert Novak. It was his column that revealed the leak, and now he is changing his mind. Joshua Marshall at Talking Points Memo (a real journalist, not just a blogger) has been covering the budding scandal (?) at a furious pace.

Here is what Novak originally said in his July 15 column:

Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report. The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him. "I will not answer any question about my wife," Wilson told me.

Lets read this carefully: Valerie Plame worked for the CIA. She was an agency operative on weapons of mass destruction. This seems to be confirmed by two senior administration (presumably G. W. Bush and his White House staff).

Novak changes his story now:

Nobody in the Bush administration called me to leak this. In July I was interviewing a senior administration official on Ambassador Wilson's report when he told me the trip was inspired by his wife, a CIA employee working on weapons of mass destruction.

One gets the sense that either Novak is backtracking and covering his own tracks, or that he is in one place or another lying. Or both.

Again, I suggest going to TPM to follow up on Marshall's excellent coverage of this.

...To the 2.4 million new members who have joined the ranks of the medically uninsured.

See MSNBC story here.

43.6 million without health insurance in the US (a national shame that with a country holding so much riches, that as much as 1/5 or 1/6 of the population can't afford to medically protect themselves).

This is becoming a much bigger political hot potato (and more hot potato than football) and will be something to watch for in the 2004 election.

I would say that right now, a substantial portion (probably a majority) of people do not want "national health insurance." However, with the corresponding steep increase in medical insurance and medical care costs, it makes you wonder. Its like how people sit on a major highway during rush hour that doesn't move day after day after day, and these people who are wasting their money on gas and engine wear, as well as their time, still don't want to support the kind of mass transit solutions that could alleviate these problems.

All it would take is a credible affordable solution (and we are the richest nation on earth, or so they tell us, so we should be able to afford anything we want if we put ourselves to it), and this becomes a big big issue in 2004. Of course, with the national deficit shooting to the stratosphere, there may not be much money left to spend, but the reality is, a single candidate with a solid overall vision and plan can make real hay.

CNN posts an interesting article here about how some Federal Judges are opposed to Attorney General John Ashcroft's attempts to crack down on plea bargains and deviation from the Federal Sentencing Guidelines. Here is the gist of the article:

Last week, federal judges urged repeal of a law that was sought by Ashcroft earlier this year making it more difficult for them to impose lighter sentences than specified in guidelines approved by Congress more than 15 years ago.

The Judicial Conference of the United States, headed by conservative Chief Justice William H. Rehnquist, voted unanimously to support overturning the law, which also requires reports to Congress on any judge who departs from the sentencing guidelines. Rehnquist had complained about the law when it was passed.

In another development last week, Ashcroft limited the freedom of prosecutors to strike plea bargains in criminal cases. He said that U.S. attorneys must seek the toughest punishment possible in nearly all cases, using plea bargains only in special situations.

Now, fewer than 5 percent of federal cases go to trial.

"If there were no guilty pleas, the courts could work 365 days a year, 24 hours a day and not try all the cases," said senior U.S. District Judge Neal Biggers Jr. of Oxford, Mississippi, named to the bench in 1984 by President Reagan.

Its interesting to note that many of the judges behind this are conservative judges (like Rehnquist) and other Conservative appointed judges. See the article for more.

A third individual connected to Guantanomo Bay has been arrested/detained on suspicions of espionage. Ahmed Melhalba was arrested at Boston's Logan Airport allegedly carrying CDs and paper documents related to detainees (al Qaeda and Taliban inmates are being held there) at the military base.

See CNN story here for more.

Melhalba is a civilian translator and was returning from Egypt. How a civilian translator was able to get their hands on any items of significance seems a little suspicious, and suggests that if he is not related to the other two being held, then there must still be people within the Guantanomo prison that are involved in espionage.

As far as I can tell, the military has two options: (A) dig out the infiltrators ASAP and rid themselves of the problem, or (B) do a wholesale change of those responsible for security and work at the prison area and this time, do a good job with security.

It also raises an intriguing, although unsubstantiated problem: It seems likely that either these people are either al Qaeda infiltrators, or they were somehow co-opted (something that is generally difficult to imagine in the military, but I suppose it is possible - Americans have been known to work as foreign spies).

The other option that comes to mind stems from an article that first appeared with the arrest of Army chaplain Yee (the first Muslim detained in connection with this), and that was a statement that it was not all that unusual to have sloppy security procedures with Guantanomo anyway. Was this a sting to target Muslims who were being just as sloppy as anyone else? Or is internal security just a mess?

It would seem that this is crying for a real investigation.

A group of people who had a class action against DeConna Ice Cream (maker of Big Daddy ice cream) agreed to a settlement worth approximately $1.2 million. The class had alleged that ice cream had been mislabeled, stating it had considerably less calories and fat than the ice cream actually had (100 cals, 2g fat versus 300 cals, 7g fat).

The bizarre part is this: People who bought the ice cream and fall into the class can either get a refund or - free ice cream!

Under the settlement, plaintiffs with receipts will receive either refunds or two free cups of Big Daddy ice cream for each cup they purchased. Without receipts, plaintiffs can only get ice cream, with a maximum of 12 cups.

About $25,000 of the $1.2 million settlement has been set aside for refunds.

All class members that submit claims will also receive four coupons for 25 cents off the purchase of single cups of Big Daddy.

See Kansas City Star story here.

Aside the obvious fact that ice cream is probably not the most compatible item for a diet (why else would one eat low fat ice cream - because they got sick of the good taste of regular ice cream?), why would these same people now accept payment..in ice cream?!?!?!? I wonder how the settlement order was worded. 'Each class member shall be entitled to 1 free cup of delicious, creamy, wonderful Big Daddy Ice Cream for each thoroughly enjoyed cup of Big Daddy Ice Cream previously purchased (offer does not apply to peanut butter & chocolate).'

I wonder if the lawyers will be paid in ice cream...

Where does Fark get this stuff from?

Get Your War On has a good take on the Valerie Plame story here (see panel under 9/29/03 entry).

But, they're going backwards, not forward.

This story here has Indonesia, not one of our most forward looking allies, on a quest to bring their country into the 15th century by making oral sex, homosexual sex and extramarital/pre marital sex illegal.

See Yahoo story here. Via Fark.

No doubt, with their little step backwards, religious conservatives and social dinosaurs will cheer and the folks who run the White House will tell us that they are a valuable valuable ally in the war against terrorism.

Sometimes, in politics, things pop up and become a major scandal, and for the life of you, you can never figure out why. Certain scandals of President Clinton's, for example (although some of them were legitimate scandals), were never based on any substantive evidence, but the press and public (well, certain segments of the public) became obsessed with them.

Of course, on the other hand, various things become public that for some reason, never become a scandal. There can be a variety of reasons why. Sometimes the evidence is lacking (the whole Niger Yellow Cake thing, for one, became popular because it was suggestive that the Bush administration knew the whole (or part of the) Iraq-Weapons of Mass Destruction thing was bogus and lied anyway. It never really caught fire because ultimately, the evidence was lacking, it didn't point to the right people, and overall, it seemed rather tangential. Oh, and it didn't have anything to do with sex.

Then there is this, the Valerie Plame story. Some of you might remember that this story started with a column by Robert Novak, where he claimed that senior White House staff revealed the name of an undercover CIA operative to him. That operative, Valerie Plame, is the wife of a former US Ambassador who called the above referenced Niger yellow cake story into question.

Senior White House staff/personnel can only mean a handful or two of people. Therefore, this naturally rises to the top. Revealing the identity of an undercover CIA operative is a criminal act. Literally.

Atrios links to an ABCNews story here. The story states that the Justice department is now probing the allegations.

Needless to say, if this in fact happened, this is a criminal act of the highest order, and is almost (in my mind) treasonous, because it is political gain above the security of this country. Who knows what damage is done when an undercover agent is outed. It puts Plames life at risk (which I am sure is a risk she accepted, although it does so unnecessarily), and it puts any other contacts she had at risk.

Why hasn't this caught on? Its possible that people do not think that Novak is a reputable writer (although I highly doubt that). My belief is that this is just a little too complicated for the average news team - much more complicated than oral sex.

It is inappropriate for Justice, headed by one White House appointee, to investigate the White House. An independent investigator is called for in this case to restore integrity to our security apparatus.

The FTC has said that they plan to appeal the ruling made yesterday by Judge Notthingham striking down the federal no call list on first amendment grounds.

See Findlaw article here.

One of the things I've grown to appreciate over the years is solid political humor. I admit that while I don't agree with Rush Limbaugh on virtually anything, there were times where I found him to be a good entertainer (way back when Clinton was first elected president - note, I said entertainer, as in I found him entertaining - but not necessarily factual or accurate). I admit that since I tend to lean towards the left, my taste in humor tends to follow. That doesn't mean I can't appreciate a clever joke though (even if it is directed at me or my viewpoint). In fact, its one of the few things that helps me cope with being an attorney sometimes.

One thing I hate though is when the humor is based on a complete (and maybe intentional?) misrepresentation of facts to build its case (because obviously even humor has an agenda).

That brings us to today's Mallard Fillmore by Bruce Tinsley (at least, the one in today's Denver Post, as this cartoon is not yet on that website):

Panel One: Mallard Presents... A Tale of Two Cities...

Panel Two:(which features a representation of presumably a cuban woman): "I came here from Havana to escape oppression, imprisonment, torture and murder... They say I'm being sent back"

Panel Three:(which features a representation of a presumably mexican man): "I came here from Mexico City to get a job... They say I might also get a drivers license

Umm, maybe its just me, but when was the last time you can recall a Cuban refugee who on their own actually made it to this country, and was sent back? The United States has for a fair amount of time now maintained a "wet feet dry feet" policy with regards to Cubans, that basically allows them to apply for permanent residence (**Note, I accidentally originally said "citizenship" in this spot**) so long as the reach dry American soil. I am fairly sure that this policy is unique to Cubans. We sent Mexicans, Dominicans and lots of other people back from where they came when we capture them on US soil.

They came "here" - presumably this character is supposed to be on dry land in the US (also, there is a presumption that the man who came here from Mexico City must be an illegal immigrant, but I won't get into that implication now).

Maybe Tinsley should spend a little time learning US policy regarding Cuban refugees before making such a spurious cartoon.

(P.S. and don't even bother saying "Elian Gonzales")

(P.P.S. I will also note that the Cuban woman is very neat looking, whereas the Mexican is drawn to (A) look like (to me) a Mexican Alfred E. Newman and only has his top button on his shirt buttoned)

(P.P.S.S. I found a copy of the cartoon here in the Jewish World Review - you need to scroll down the page to find it, and I don't know how long it will be there)

I made an off hand suggestion in a previous post (I don't have a link. don't be lazy, scroll down 3 posts) that maybe the next thing would be a "Talk Like George W. Bush" day in light of the incredibly entertaining "Talk Like Bill O'Reilly" day (see Atrios for the best example of this. If you don't like it, shut up! I'm talking now!).

October 3rd (or 10th or whenever - I'm not picky) can be "Talk Like President George W. Bush" day. Come on...who is interested? Don't we want to put food on every family? Don't we want to make sure that our children is learning? Don't we want to speak in 3 word sentences? Don't we want to answer every question with a sentence that includes "Iraq," "terrorism," and "September 11th"???

Just remember: "There's an old saying in Tennessee I know it's in Texas, probably in Tennessee that says, fool me once, shame on shame on you. Fool me you can't get fooled again." (shamelessly stolen from Slate's Bushism collection).

Oh, wait...sorry...Segway Recall. The transportation device known as the Segway has been recalled, according to an article here on CNN.

A power problem apparently causes them to topple.

Maybe George W. Bush wasn't a klutz afterall.

I know some bloggers (yeah, you, KaiserCrack) are not particularly big fans of Tom Toles, but he takes on the recent court decision re: no-call lists with mastery. See cartoon here.

Via Counterspin Central.

SHUT UP!!!

Ok, that concludes my admittedly feeble and utterly unoriginal (yes, I got the idea to say "Shut Up" from Rick Klau's blog) attempt to talk like Bill O'Reilly. I'm sure others will do a better job.

What next? Talk like George W. Bush day? It would be tough to write posts using only 3 word sentences...

In a move that was probably a surprise to everyone (surprising because of its peculiar timing), US District Court Judge Edward Nottingham ruled that the federal no-call list, as constituted, violates the first amendment because it singles out one group (for profit business) and protects another (charitable).

See Denver Post story here and CNN story here.

Quoting from the CNN article, the Judge ruled:

"... The court finds that the FTC's do-not-call registry does not materially advance its interest in protecting privacy or curbing abusive telemarketing practices. The registry creates a burden on one type of speech based solely on its content, without a logical, coherent privacy-based or prevention-of-abuse-based reason supporting the disparate treatment of different categories of speech," Nottingham wrote.

The problem that I have with these first amendment arguments (and I am as big a supporter of the first amendment as anyone else) is that this does not actually ban speech. It does the following:

(A) continues to maintain the obvious fact that while they are guaranteed speech, they are not guaranteed an audience or a microphone. By calling my house, they are expecting me to be their audience and they are using my phone equipment as a microphone - I have a right to avoid that from happening;

(B) the first amendment only bans action by government that restrict speech (or if you want, you can include private individuals in de facto public forums), but an individual citizen in their home or shop can control speech and not be liable for first amendment violations. This list is not a ban by government, but rather the facilitation of the right to be removed from telemarketing lists and the obligation of telemarketers to remove you, if you should request. Therefore, the only way the list works to remove the audience is by direct affirmative action taken by individual citizens, which works because my home phone and cell phone are not what I (or probably any court) would consider to be a public forum.

I find it interesting that this ruling came down within an hour of overwhelming congressional action. Obviously, its not constitutionally valid to argue that just because Congress overwhelmingly voted for it and the people overwhelmingly want it, that it should be law. But I have to imagine that this is going to do two things: (A) this case will almost certainly be appealed, probably to the Supreme Court (the articles make a good point that with the same arguments being made re: spam and junk faxes, they will not be able to avoid addressing the issue forever), and (B) Congress may take a stab at a broader ban.

I personally find charitable telemarketers even worse. You know, when you hear crap like "oh, you don't support the police in your community?" (No, I am not going to give my credit card to someone who called me with their caller ID blocked) etc., etc.

So I say, let them expand the list and give me an option to block charitable calls as well - it'll be a blessing in disguise. I do virtually all of my charitable donations via mail (or I seek them out on my own) anyway. And I say Congress should go one step further. Besides forcing them to follow the no call list, force telemarketers to not block their identity via caller ID, and possibly establish a "*" number so that people can easily dial a number to report telemarketers who call despite the no-call list (like how they have *69, *57, etc).

And fight this decision in the courts and force the Supremes to address the issue once and for all.

Props to the Dean webpage for posting a (mostly complete, I assume) transacript of the debate between the 10 Democratic candidates that was held today. You can find it here. Daily Kos also had a running commentary in the comments section of one of his posts. The post is here, and then continued here.

I'm going to try to catch a replay this evening - its too bad that they didn't have it at a better hour of the day when more people could see it. The transcript and commentary is worth a read. Some good one liners, good attacks, and when asked what issue he'd tackle that would be unpopular, but the right thing to do, Lieberman said he'd fight a war on terrorism. THAT is really unpopular, Joe!

After a huge vote to grant the FTC authority (vote was 412-8) to have the no call list, the Senate follows through with an equally impressive 95-0 vote in support. Bush is expected to sign.

See CNN story here.

Southern Methodist U. shut down a cookie sale being held by a campus conservative group. The group was protesting affirmative action by charging white males $1.00, white women $.75, Hispanics $.50 and blacks $.50.

See FoxNews story here.

Something seems inherently wrong to me here. If a multi-cultural or left leaning group were to have a similar sale and charge similar rates (or reverse it, to show how easy things are for whites, make a point about discrimination, etc), I somehow highly doubt this would be shut down and I'm pretty sure that there would be little outrage.

I may not agree with their interpretation or understanding of affirmative action, but I would say that these students certainly have a right to express their viewpoint, and would dare say that this should be protected speech. Of course, SMU is a private university, and does not necessarily fall into the first amendment category of governments restricting speech.

As much as we harp on patriotic correctness, we should be cognizant of real political correctness and stamp it out wherever we can. Just because someone is advocating a viewpoint we do not agree with does not mean we should silence them, even if their arguments may offend some people.

Zacarias Moussaoui's defense team has asked US District Court Judge Leonie Brinkema to dismiss the charges against him since the US government continues to refuse to present three witnesses for examination.

See CNN article here.

From the article:

Moussaoui had asked to question Khalid Shaikh Mohammed, who is considered the mastermind of the September 11 attacks; his key planner, Ramzi Binalshibh; and Mustafa Ahmed al-Hawsawi, a suspected paymaster for al Qaeda.

All three of these individuals are believed to be in US custody, but the US government refuses to make them "available" for depositions or testimony. Moussaoui believes that these men could provide evidence that Moussaoui was not, in fact, a part of the 9/11 plans

Moussaoui is the only person being held in the civilian system on charges relating to 9/11/01's terrorist attacks, even though he was already in custody at the time of the attacks. The government has alleged at varying times that he was either the 20th hijacker or the 5th plane pilot.

The government's primary contention is that national security interests are at stake. I have stated repeatedly that I believe that the government is out of bounds here. It is the one that chose to pursue this matter in civilian (rather than military) courts, and therefore it should live by the rules of the civilian courts. If the government is in possession of potentially exculpatory evidence, it should allow Moussaoui to at least review it (with appropriate precautions, if need be, such as keeping any transcripts under seal, redactions, etc.). Any decision by Brinkema will likely be reviewed by the Court of Appeals and possibly the Supreme Court. To date, the courts have expressed a remarkable willingness to 'not question the executive in a time of war.' The government has also expressed a willingness to move this case into the military tribunal system should things not go there way (talk about forum shopping).

The proper course is for the government to present these witnesses. Otherwise, I fear that this case will be viewed as part of a dark chapter in American justice and jurisprudence.

After a court order blocking enforcement of the National No-Call Registry, the United States House of Representatives has passed a measure granting the FTC explicit authority to have the no-call list, with the goal to get the measure signed by the President in time to allow for enforcement on October 1, 2003.

The court had previously ruled that the FTC needed some grant of authority from Congress before it could have its no call list.

See CNN article here.

Of course, with 50,000,000 people (people? phone numbers? the articles aren't specific when they say "people") on the list, that's a lot of voters to risk pissing off. So no shocker here.

A Nigerian woman, sentenced to death for adultery, has been freed by an appeals court. A Shariah court using an interpretation of Islamic law had sentenced the woman to death 2 years ago.

See CNN story here.

Unfortunately, not everyone in Nigeria agrees:

But not all the spectators who attended the hearing were pleased by the result. One man who had come to hear to court's ruling said: "I would have preferred Amina to be stoned to death. She deserves it."

To irk you more, here is how the case went, more or less:

She insists she did nothing wrong and that the man who fathered her child made a promise to marry her. He did not, leaving her pregnant and with no support.

The man said he was not the father, and three male witnesses testified he did not have a sexual relationship with Lawal. The witnesses constituted adequate corroboration of his story under Shariah law, and he was freed.

I try my hardest to be tolerant of all ideas and religions, no matter how foreign some of them seem to me (because for the most part, they don't harm other people, and most participants are willing. But some of these interpretations of Shariah law simply escape me.

At least the right decision was reached, and it only took 2 years to do it (and people say justice moves slow in America).

Thanks to KaiserCrack for pointing me to this gem from Common Sense & Wonder.

Go. Laugh.

Here, via Findlaw.

(Al Halabi is the Air Force person recently charged with espionage at Guantanamo)

Andrew Sullivan has entered a new phase of therapy with regards to the candidacy of General Wesley Clark. You know, anger, denial, bargaining, depression and acceptance. Insert somewhere in there "masturbation without any real purpose" because that is the only way to describe the steady diet of crap coming from Sullivan's pages.

Go to Sullivan's page and see how many of today's entries relate to General Wesley Clark. I am sure that Sully Watch is doing a good job of picking this stuff apart, but I figured I'd share one of the choice quotes from Sullivan:

Yesterday, I wrote: "Clark's previous remark that he'd be a Republican if Karl Rove had returned his calls is just a metaphor, or a fabrication, or a dream, or something." Well, Clark claimed that "something" was a joke; and that he was misinterpreted. I take the point and should have mentioned this interpretation at the time. I was a little flip. But don't get me wrong: I don't believe Clark for a minute about this incident. One thing we know about him is that he's phenomenally ambitious and extremely prickly. It doesn't surprise me a bit that he might have wanted to join the Bush team and was pissed when they didn't want him. Howard Fineman's sources, moreover, didn't just make their point by citing the "joke." They say Clark went on at length about his sense of grievance with the Republican establishment. The point about Clark's flakiness stands. And it's not improbable.

Several bloggers, including Joshua Marshall (Talking Points Memo) have already picked apart the idiocy of this track have already put the smackdown on Sully once for harping on this issue (see TPM's article here). But Sullivan can't resist the urge.

So lets get this straight. Sullivan is unquestioningly believing Colorado's Governor Bill Owens (a Republican operative) version over what happened, but doesn't seem to find time to question Owens' agenda?

I'm not going to bother with the rest of Sully's quotes, except to say that its hard to believe that this guy obsesses with the NY Times quality of reporting when he can't drool fast enough to accept the word of a party figure like Owens without a question in his little mind.

In other words, Sullivan is scared of Clark.

If only Clark had a hot body. Then Sully would change his mind.

Kazaa, who is accused by the RIAA of facilitating the infringement of untold thousands of copyrights via its file sharing system/software, is putting the shoe on the other foot and suing the RIAA for using unauthorized versions of its software to snoop on Kazaa users.

See Tampa Bay Online (Tampa Tribune?)article here. Via Fark.

From the article:

Sharman Networks, the company behind the Kazaa file-sharing software, filed a federal lawsuit Monday, accusing the movie studios and the Recording Industry of America of using "Kazaa Lite," a replica of its software without advertising, to get onto the network. Sharman claims its copyright was violated because Kazaa Lite is an unauthorized version of its free software.

Once on the network, the companies offered bogus versions of copyright music and movies and then sent online messages to users warning them they were breaking the law. Sharman claims those moves violated terms for using its network.

Isn't life marvelous?

Now I think that the RIAA has a legitimate beef but approaches it the wrong and extremely heavy handed way (like accepting a $2,000 settlement from a 12 year old that lives in the projects in NY City). But those who throw stones should make sure that they do not live in glass houses. If Sharman Networks (Kazaa) is right in their understanding of the law relating to their software, lets hope they teach the RIAA a little lesson about copyright violation.

A federal district court judge in Oklahoma has blocked implementation of the federal no-call list, stating that the FTC overstepped its statutory authority in enacting the list. See CNN story here.

The Direct Marketing Association and other plaintiffs sued to block enforcement of the list, which was to go into effect on October 1, 2003. About 50,000,000 have signed up for the list. From the article:

The DMA sued to block the list shortly after Congress approved it in January, saying it would violate free-speech laws and discriminate against an industry that provides millions of jobs.

Of course, many states, including (thankfully) Colorado have a state no-call list. The funny thing is that the various telemarketing groups claim that they do not want to call people who do not want to receive calls from them. There they go. Thus, a no-call list is doing the job for them. Signing up for Colorado's no-call list has seriously cut down on the number of unwanted calls in the evening. Otherwise, we generally let the answering machine pick up the phone if the caller ID is unavailable.

The argument of free speech is flawed. Nobody is taking away their right to free speech. They may give their pitch whenever they want. However, free speech does not equate to a guaranteed audience to hear your words. I am opting out of being just that audience by signing up to the no-call list.

But aside from constitutional reasons, there are practical reasons to not deal with telemarketers. Its as simple as: You are crazy if you give out any information about yourself (such as (most important) credit card numbers, bank account information, social security number, date of birth, etc.) to someone who calls your house, unsolicited, and they can't provide you a positive ID on your caller ID.

I personally will not deal with telemarketers (I do not accept their calls), and I do not deal with charity organizations over the phone (I have other ways to support charity that do not involve the same level of risk). Simple common sense.

If the DMA really doesn't want to contact those who do not want to be contacted, they will drop the lawsuit. Even if they win, I guarantee that demand is there for Congress to find a way around any legal or constitutional issues and will re-institute the list.

OPEC, which includes such nations as Kuwait and Saudi Arabia (our ostensible allies and best friends), has decided to a surprise (think of it as a bonus) cut in oil production, reducing the flow by 900,000 barrels per day in advance of this winter's heating demand.

See CNN story here.

Member nations include: Algeria, Indonesia, Iran, Iraq (currently not included though), Kuwait, Libya, Nigeria, Qatar, Saudi Arabia, United Arab Emirates and Venezuela. See OPEC's website here.

Remember when you're busy thumping your chest about how evil France was for disagreeing with us on Iraq, that there is a cartel, made up of many of our other allies, who is taking advantage of the situation to pick your pockets.

A county court Judge in Escambia County, Florida (Pensacola?) has been ordering drunk drivers to have bumper stickers placed on their vehicles.

See CNN story here.

Quoting from the article:

Escambia County Judge William White said he hopes the bumper stickers, which include an identification number for each driver and a toll-free phone number, will reduce repeat offenses for driving under the influence of alcohol.

The stickers also say "How's my driving? Call Toll Free . . . The Judge Wants To Know!!!"

So essentially the stickers amount to a scarlet letter on the vehicles of drunk drivers. One need not stretch their minds too hard to imagine the kinds of problems this could create. A fellow driver with a vendetta (because you, say, cut them off) could call the number to report you. A mischievous person can call it just to create problems. Worse, it acts as a punishment for other family members who may also be driving the vehicle. If I am convicted of a DUI and have to 'wear the sticker' on my car, suddenly my wife also has to 'wear the sticker' on my car, and pretty much anyone I loan the car to would have to wear the sticker.

While I appreciate the creative attempt to manage those convicted of a crime (rather than just put them in prison for X months/years), something like this seems a little too prone to abuse and a bit overreaching in that it treats those who have not been convicted of a DUI, but still drive the car, as criminals.

FoxNews is reporting that two more men in Guantanamo Bay, Cuba are being held on suspicions of espionage and possible improper communications with al Qaeda and Taliban detainees. This follows the detention of Muslim cleric James Yee on similar suspicions. See story here.

Here is the scary part:

But determining what Yee’s intentions were may be difficult, according to one senior official. The official told Fox News that he was having a difficult time assessing the meaning of the articles said to be in the chaplain's possession when he was arrested.

Yee was detained in part because he carried classified information without having something called a "courier card" in his possession. Such mistakes are not uncommon, the official said. Yee also possessed a laptop equipped with a modem, and modems are strictly forbidden at the base. The official pointed out that nearly every laptop now sold is equipped with a dialup modem.

A Pentagon official told Fox News that classified information was also found on the laptop of the Air Force member now in custody. But the official said slip-ups like this -- which he described as "sloppy computer security" -- are somewhat common.

Laptops with modems are forbidden, but nearly every laptop has one anyway (uhh, why isn't the Pentagon under special contract with Dell or some other company to provide laptops without modems???). Somewhat common sloppy computer security? Not uncommon to have people carrying classified info without a courier card????

Were these people carrying brownie recipes or classified national secrets?

One of two things seems likely (actually, a third one, which I will get to in a moment): Either the military is infiltrated, or the military is being way too sloppy (or both).

They did not give the religious affiliations of the two recent detainees, but if they are Islamic, it may also be possible that the military is singling out those of Muslim faith for special scrutiny.

I can't see a good explanation coming out of this.

How Appealing has a link to the 9th Circuit decision, which can be found here. Some quotes from the decision:

Interference with impending elections is extraordinary, id., and interference with an election after voting has begun is unprecedented.

If the election is postponed, citizens who have already cast a vote will effectively be told that the vote does not count and that they must vote again.

For these reasons, the district court did not abuse its discretion in concluding that plaintiffs will suffer no hardship that outweighs the stake of the State of California and its citizens in having this election go forward as planned and as required by the California Constitution.

So essentially, (A) we will not interfere with an election that has already taken place (and due to absentee ballots, the election has effectively started), and (B) the interest in having elections proceed as planned and required by constitution outweigh any hardship that may have been proven (the decision mentions that there has not been sufficient proof that there will be a larger margin of error with punch cards than with any other form of balloting).

Plus, the decision was per curiam, meaning that it was issued from the Court as a whole, and not by any particular judge. That makes the decision much less vulnerable to partisan attack (a good move regardless of how the Court ruled, in my opinion).

CNN has just reported that the recall will proceed on October 7. More when an actual story is posted.
**Update**

FoxNews has posted a story here. Caution: The initial draft of the story is riddled with typos and incomplete sentences. Maybe CNN does have a good point by waiting so long to print an actual story. Anyway, as of right now, the story does not add very much to the headline (since sentences and paragraphs are truncated in a sloppy manner).

My opinion is that the US Supreme Court will not touch this case and there are quiet cheers of rejoicing in the halls of the SCOTUS because they will not have to dirty their hands with this case. They will probably reject any appeal without comment.

The recall will go ahead on Oct 7. Cali Republicans may be happy now, but I think they have just suffered a pyrrhic victory.

**Update**

CNN Has a better written, but not terribly enlightening story here.

We are still waiting for a decision from the en banc review in the 9th Circuit in the California recall race. A decision is expected today, and we will cover it when it is released.

A hearing is to be held today in the California recall matter. As you may recall, the 9th Circuit Court of Appeals voted to delay the recall election citing concerns under the Voting Rights Act (6 counties, heavily minority, still using punch cards). The 9th circuit will be rehearing the matter en banc (meaning that a larger portion of the 9th circuit will rehear the matter - 11 judges on the 9th circuit, instead of just 3).

See MSNBC story here.

The hearing is to be held at 1pm Pacific Time (4pm Eastern). While many of the Judges on this panel were selected by Bill Clinton, it is believed that this panel is considerably more moderate than the one that delayed the recall. There are two schools of thought at work here. First is the belief that this more moderate panel wanted to overturn the initial decision because they feel it is out of line with precedent. The second school of thought is that there is a belief that the Supreme Court would have required the 9th to rehear the matter anyway (they would like to avoid having to handle this case following the Florida fiasco in 2000), so with the election just 2 weeks away, this is a formality to give time to appeal to the US Supreme Court, if necessary.

Its tough to call this one, and I think that it is literally a toss up on which way they are going to go, although I have to imagine that many of the Judges will want to lean in favor of protecting voting rights and upholding the decision.

For what its worth, I don't think that the US Supreme Court will take an appeal on this either way, and will instead pass with no comment (or they will say that by the time they reach a decision, the matter will be moot and the Oct 7th election date will have passed).

In an article regarding US Rep Bill Janklow, and how sorry he is (he is accused of running a stop sign going 71 in a 55, killing a motorcyclist), Janklow said:

"South Dakota (search) is a jury, all of them. They're a jury. They want to hear the facts. I don't think they'll make up their mind on anything until the facts are laid out before them," Janklow said.

See FoxNews story here.

Yeah, its definitely tough to imagine people making up their minds before having all of the facts. [sarcasm off]

With crime rates at 30 year lows, Attorney General Ashcroft believes now is the time to crack down on crime, and has ordered federal prosecutors nationwide to go for the most serious offense and the maximum penalty each and every time.

See FoxNews story here.

To make sure that we all get a few giggles out of his dictate, Ashcroft said:

"The lawless. The predatory. The habitual repeat offenders. These are the real sources of crime," Ashcroft said.

Gee, is he sure? The lawless, predatory and repeat offenders are real sources of crime? Geebus, next thing he's going to say is that those who drink significant amounts of alcohol are the real sources of alcoholism. Those who use drugs regularly are the real source of drug addiction. Maybe, just maybe, those who commit acts of violence with intent to affect public policy are the real sources of terrorism.

Of course, the real consequence is that with great inflexibility in handling accused within the federal system, there will be less incentive to plea bargain, meaning that more cases will go to trial and the courts will be further bogged down.

Gee - collecting data on judges who don't follow the sentencing guidelines the way you'd like them followed, reigning in prosecutorial discretion in pleaing cases down and telling us that those who don't follow the law are real sources of crime.

Now we can understand (fully) how John Ashcroft lost to a dead man in his Senate battle.

With the coming political campaign for president, I have decided to create a section in the right column for political blogs and sites of interest. I will try to, over time, have sites for all candidates, and if you have any in particular that you like, let me know and I will consider adding them. For now, I will stick with Democratic hopefulls, because I think we can fairly confidently say that President Bush has no competition.

I personally have not made a commitment one way or the other on whom to support in the Democratic race. I know who I will not be supporting. Al Sharpton comes to mind because, well, anyone who doesn't know the man's history should learn. Lieberman because I find him to be an R.I.T. (Republican In Training). But otherwise, now is the time for us to be learning more.

But, you say, this is a legal blog. The election will shape our laws for years to come. That is simply a fact, and it would be foolish to ignore that reality.

United Airlines, currently toiling in Chapter 11 bankruptcy, announced its plans for a low-fare no frills (uhh, my experience with United has been that aside from a "free" can of soda, United flights aren't exactly loaded with frills) airline to compete with the likes of Jet Blue, Frontier, Southwest, etc.

See Denver Post story here for more.

It is my opinion that this endeavor will fail, as will Delta's attempt with Song Airline. There is a reason why people select Jet Blue. Lets take my father for example. He is a Jet Blue devotee. If he could choose any airline, he would fly Jet Blue, and has even stated that he would pay a premium. Why is that? Lets turn to what United Airlines thinks (from the above article):

Customers want low fares, low fares, low fares, and they're not willing to pay extra for a free meal, said Sean Donohue, vice president for the new operation.

First of all, I can't recall the last time I got a "free meal" on a United Flight. But lets take a look at what United is saying: Not willing to pay for a free meal ... not willing to pay for a free meal...is that anything like me saying I am not willing to pay $80,000 for a free Mercedes? What does that mean? Who pays for free things? And this is the philosophy that screws United.

Anyone who has ever flown on Jet Blue can tell you that they know how to do certain things very well. People who work for Jet Blue seem cheerful. I am not talking about that 'thank you and have a nice day' cheerfulness you learn from an employee manual. They seem genuinely friendly. When you get on a Jet Blue flight (at least the ones I've been on, the flight attendants do not just sit at the door saying "welcome aboard" and whatever othpleasantnessies they throw your way. They are working the aisles. They are helping people put bags in the overhead bins (and making sure they go in properly, so some guy doesn't use his one bag to take up the entire bin). Yes, they serve snacks. But I seem to recall that they came around with a huge assortment of full size snack bags of different chips, cookies, crackers, etc. (we all know what you get on a flight with the big airlines, right?).

But its more complicated than that. This is from Delta's creation, Song Air, and their web page:

Right away, you'll know there's something different.
Nobody likes to wait. So Song offers a few things at the airport to make it easier to get around. Self-service kiosk check-in will get you on your way to the gate in no time. Or better yet, check in and print your boarding pass at home up to 24 hours before your flight. Then pack your carry-on bag, get to the airport and avoid check-in lines altogether.

When you get to the gate, big, beautiful gate information screens keep you in the know. Just sit back and relax until it's time to get on the plane.

V.I.P. seating, in every row.
Wherever you sit, you'll have at least 33 inches of seat pitch which means more legroom for you. That's more than any other low-fare service. It's more than most full-fare airline service too.

And how many other airlines give everyone a leather seat? Not many. Funny, because given the choice, just about everyone on the planet would want one. Song flights have leather seats for everyone, cockpit to tail.


TV, games, mp3s... is this really a plane?

By early 2004, every seat on Song flights will be decked out with a personal video monitor so you can:


watch all-digital satellite TV from DISH Network
create a playlist of digitally-streamed MP3s.
watch pay-per-view programming on demand, there's something for all ages.
play multi-player interactive games with other passengers.
find points of interest along your trip with iXplor, a zoomable video map.
get gate information for connecting flights.


Not your ordinary airplane food.
All Song flights feature complimentary beverage service. But you can buy food on board, too. Real food. With brands you actually recognize and like. Bon appetit!

You will note also on Song's page from their routes that they are basically a competitor to try to deal with Jet Blue.

So in effect, what they are saying is that we are willing to give these goodies to our passengers - where we have to, in order to compete but for those of you without serious competition, don't worry, your non-updated 15 year old 737 will be arriving at the gate shortly.

And I suspect that Starfish will suffer from the same shortcomings.

This is where Starfish/UAL and Song/Delta fail. They treat customers as if they are worth fighting for only if they have to fight for them. And that is no way to do business.

CNN does their usual shilling for big business with this article on Homeowner's insurance, and how many insurance companies are (A) charging their clients more, and (B) refusing to renew policies for clients who file claims or in some cases, inquire about possible claims.

See CNN story here for more.

My personal favorite is:

Insurance companies don't deny that they're raising prices and choosing their customers more carefully than they used to. But it's not because they're suddenly greedy, they say.

Rather, escalating repair costs and the increase in mold-related claims (especially in warm, wet climates) have made it more expensive for them to do business. At the same time, they say, homeowners' premiums had been artificially low.

You will notice that there isn't much critical reporting in this article. Raise your deductibles. Don't make smaller claims. Don't let your credit score get out of whack. Send a dozen roses to the insurance company every few months (well, ok, its not that bad...).

You will note that a lot of the ailments in our society around insurance companies. But you already knew that.

Findlaw managed to find a bunch of constitutional scholars with concerns about problems with succession should the Prez and VP be killed, and in the event that The Prez, VP, Cabinet and congress be wiped out. But their solution is even more bizarre:

The scholars also suggested that Congress create a new office for an assistant vice president or first secretary to step in after the deaths or resignations of the president and vice president.

That person's "primary duty would be to remain in a secure location outside Washington, D.C., and away from the president and vice president," said Howard Wasserman, a Florida International University law professor.

An assistant VP? But the assistant is always kept in a secure (presumably undisclosed) location? Wouldn't really be able to assist, would he or she? Is this a suggestion that we keep someone, on the payroll, under wraps, doing nothing for 4 or 8 years? Would they be elected? At least Congress-critters are elected...

Note: Simple solution: Secretary of State should be after VP in succession, and then the rest of the cabinet. If there is still a fear that too many people can be wiped out in one shot, then allow the succession to go down to governors, in order of their accension to the union (sorry Hawaii, sorry Alaska). Another possibility could be (as much as this would be painful) to include the Chair of the Jt Chiefs of Staff on the succession list. Presumably a total wipe out would be no accident and would find this nation on a war footing right away.

See Findlaw story here.

Wouldn't it be nice if drug companies who advertised would actually tell us what their drug is used for? I am tempted to compile a list of 10 or 15 medicines from TV that I have no idea what they are for, and then when I go to visit my doctor for my checkup. When he asks "do you have any questions" - I'll turn around say "why yes....the drug companies said I should ask you about..."

Verizon is continuing its fight against RIAA special subpoenas under the Digital Millenium Copyright Act. See FoxNews story here.

In addition, Congress might be seeing its first rollback of the DMCA law. Quoting from the article:

Sen. Sam Brownback , R-Kan., planned to introduce a bill Tuesday to protect Internet providers from such subpoenas. His proposal, which he called the "Digital Consumer Internet Privacy Protection Act," would block subpoenas except in pending civil lawsuits or in cases where pirated data files were stored on computers such as Web sites.

Stay tuned...

Following a decision by a 3 judge panel in the 9th Circuit Court of Appeals to delay the recall vote in California to allow for the installation of modern voting machines statewide, the full 9th circuit has voted to rehear the matter before an 11 Judge panel, should the parties decide to pursue that route.

See FoxNews article here.

I can't imagine that the US Supreme Court would want to get involved in this case otherwise, and I imagine that this will ultimately go to the full 9th circuit. I am guessing that the Supreme Court will wait to give the full 9th circuit a chance to hear the matter. By the time this went to the Supreme Court afterwards and they agreed to hear the matter, the October election date will have passed and the issue of having the election on that date will be moot.

Chrysler corporation has decided to hire back a man who was exonerated after 17 years in prison for three rapes (freed due to DNA evidence/testing).

They hired him back and allowed him to return to the paint division, where he previously worked, giving him credit for his 7 years previously worked (I assume in terms of pay scale and seniority).

See story here on TalkLeft.

I'm always quick to criticize a corporation when they do the wrong thing. We need to make sure that we are quick to apply praise when they do the right thing as well - and this clearly is the right thing to do, and by crediting him with the previous 7 years experience, they did it the right way.

Due to work load, a slow day blogging, at least for a while.

CNN is reporting that General Wesley Clark is going to enter the presidential race. See story here.

I'm not 100% sure I would support him, but at the very least, he adds a huge shakeup to a largely lackluster Democratic field (Sharpton, one of their best speakers, has been involved in more NYC shenanigans that have resulted in death than anyone I can think of; Braun, Kucinich, Graham don't have a shot, Edwards barely has a shot, although he has some ideas, Lieberman may win the nomination, but would get crushed in the election as people opt for the real Republican, not this wanna-be Republican - Dean, Kerry and Gephardt are the ones otherwise generating the most buzz).

For more info on Clark, click here.

Here is a copy of the decision that came down today re: the California recall, via Findlaw.

As we all know, the 9th Circuit Court of Appeals has delayed the recall election because of the use of punch card voting machines, with a 7 day window to appeal.

It is my opinion that while the delay in the recall may be good for those who would have had to use the punch cards (and we don't want anyone disenfranchised, minority or not), I am not so sure that this really helps Gray Davis.

As far as Davis is concerned, support for the recall had been dropping consistently to the point where it stood at around 50%. Even better, no Republican had been able to step forward and captivate the electorate, with Schwarzenegger and McClintock fighting it out. Finally, Bustamante has not proven to be the Democratic knight in shining armor - a guy who we could say "we don't like Gray Davis and we'd rather have __________."

As far as the Republicans go, this gives Arnold and GOP [possibly much more time to try to get McClintock out of the race. However, it also forces Schwarzenegger to be a little more profound than 'communism is bad' (or something similar that I heard him say this weekend). McClintock is surging, and while any delay is sure to dampen enthusiasm, McClintock is a polished speaker and salesman (I do not mean that in a pejorative manner) who might have the chance to really cut into Schwarzenegger conservative support (the "any Republican is good by me" vote). Schwarzenegger is not the greatest public speaker in the world (something I find baffling, since he is an actor, albeit not a great one, and you would think he'd be a bit cleaner at reciting his speeches).

As far as Bustamante goes, his position doesn't change so long as McClintock is in the race. With McClintock in the race keeping support, Bustamante should remain level and stay just ahead of the pack.

The interesting thing is this: I think the Republicans are in a catch-22. McClintock attracts a much more conservative, and logically, pro-recall following. He is polling quite decently now - I believe in the range of 15% - maybe in the higher teens. If McClintock withdraws, and these supporters can't solidly support Schwarzenegger (because of his allegedly relatively liberal stances on many issues), will they turn out for the recall election period? If McClintock stays in the race though, can either Schwarzenegger or McClintock win the second part of the election?

The Democratic primary is scheduled, I believe, for March, and there is speculation that this might be rescheduled for that election (Republicans should be thrilled that this would save the state mucho millions). That definitely tips the hand back to the Democrats, should that happen.

But right now, everything hangs on (A) an appeal of the decision and (B) the rescheduling date. I would say that Gray Davis, Cruz Bustamante, Arnold Schwarzenegger and McClintock are all biting their nails.

Plus, we must remember that this is the 9th circuit. Anything is possible from here on out.

The Federal Court of Appeals is blocking the recall (well, delaying it) election because of the punch cards being used in some areas might unfairly penalize minorities.

See FoxNews story here and MSNBC.

According to MSNBC, parties have 7 days to appeal. And you can bet that they will do just that.

Interesting to note as a sidenote, nearly 20 minutes later, CNN still has the late breaking news banner on their front page with no story at all. FoxNews has a short story and MSNBC, while not having a story, includes the reason why on their front page (actually, they have a story now right here. I am not a big fan of FoxNews, but in the modern electronic age, CNN needs to learn how to keep up with broadband media.

As major Hurricane Isabel threatens the US east coast, CNN has expressed some concern that this could be devestating - to the insurance industry.

See CNN article here.

Quoting:

Hurricane Isabel poses a threat not only to residents and businesses along the East Coast but also to the nation's insurance industry, which could easily see billions of dollars in loss claims from the storm.

Uhhh, thats why people buy and they sell insurance. But before you cry for the insurance companies:

AM Best's estimates of industry-wide surpluses stood at $334 billion at the end of 1999 and was down to $317 billion by the end of 2000. By the end of 2001, with further declines in the market and the impact of the Sept. 11 terrorist attack, the surplus sank to $290 billion and was basically flat last year, ending 2002 at $291 billion.

Hopefully any loss of life and damage will be minimal.

No details yet, but will post more when available.

By a margin of 51 to 49%, Texas' prop 12 has passed, meaning that the Texas state legislature will be able to cap non economic damages at $250,000.

Via HealthLawBlog.

This seemed like a hard fought battle, and it will be interesting to see how much this sort of capping catches on in other states. I am sure that the insurance companies are already on the task.

The funny thing is - I bet doctors will not see their malpractice premiums go down significantly. Afterall, its been months now since Colorado did the insurance co's bidding and dropped No-Fault (which was supposed to save us all money), and I have only seen my rates go up. But we will see.

Gov. Rod Blagojevich of Illinois is exploring whether the state can save some serious money for its state health and retirement health plans if it starts buying prescription drugs from Canada.

See Findlaw article here.

Its sad that people have to go to another country to get drugs made in this country for a cheaper price. Lets hope that Blagojevich is able to push ahead with this plan.

Atrios has a good cut here of CNN correspondent Christiane Amanpour's perspective on covering the war. Quoting:

Said Amanpour: "I think the press was muzzled, and I think the press self-muzzled. I'm sorry to say, but certainly television and, perhaps, to a certain extent, my station was intimidated by the administration and its foot soldiers at Fox News. And it did, in fact, put a climate of fear and self-censorship, in my view, in terms of the kind of broadcast work we did."

Brown then asked Amanpour if there was any story during the war that she couldn't report.

"It's not a question of couldn't do it, it's a question of tone," Amanpour said. "It's a question of being rigorous. It's really a question of really asking the questions. All of the entire body politic in my view, whether it's the administration, the intelligence, the journalists, whoever, did not ask enough questions, for instance, about weapons of mass destruction. I mean, it looks like this was disinformation at the highest levels."

Interesting..... Although nobody should be shocked.

Was walking around Barnes & Nobles, picking up a book on ghost towns for when my mom and step father come to visit next week, and I come across the following title:

Chicken Soup for the Prisoner's Soul

I kid you not. Here is an Amazon link to the cover.

Besides the absurdity in such a title, does Barnes & Nobles expect many prisoners to be wandering around their aisles?

A collection of DJs and music services have offered to pay the $2,000 settlement reached between the RIAA and Brianna Lahara, a 12 year old who lives in a New York City housing project.

See CNN story here for more.

They also all said that they would not do this for the other 260 or so who are currently facing lawsuits.

It is still my belief that this was a fight worth fighting, although I can certainly sympathize with the kid and her mother's position that the RIAA put them in. There is no way a 12 year old appreciates the intricate nature of copyright or the Digital Millenium Copyright Act (DMCA). But with the threat of penalties as high as $150,000 per song and an alleged catalog of 1,000 songs on her computer, she could have been facing $150,000,000 in penalties in a judgment, should the judge/jury not seen things properly. This judgment would (A) ruin the psyche of the kid, and (B) force both the kid and parent into bankruptcy.

The RIAA says that they did not know that Brianna Lahara was a 12 year old. Still, shame on the RIAA for not backing down from their lawsuit against a kid once they found out.

If you are looking for a blog that features law, sex, references to the Pixies (how can you go wrong...Surfer Rosa is one of my favorite albums) and an article (among many) titled "Bill O'Reilly is an asshole" check out Fables of the Reconstruction by Mithras.

From Law, Politics & Press (a cool blog from a second year law student that I just noticed - check it out) via the Washington Post comes this quote from Senator Kerry, aka presidential candidate John Kerry:

And the[ Democratic presidential candidates] err in making Mr. Ashcroft their all-purpose bogeyman. Tuesday night Massachusetts Sen. John Kerry -- who at least has the good grace to acknowledge his vote in favor of the Patriot Act -- noted, as he surveyed the debate audience, that there were "people from every background, every creed, every color, every belief, every religion. This is, indeed, John Ashcroft's worst nightmare here." Mr. Kerry got his laugh, but he sullied himself in the process.

Obvious implication: Ashcroft is a racist and worst. Now I think that Ashcroft might be a religious fanatic, and I do not think that he is terribly compatible with the US Constitution. But what is the point of making this comment? What does Kerry hope to gain outside of a cheap laugh?

Combine this with comments I am hearing of late that Dean called Hamas terrorists "soldiers in a war" (targeting military targets is being a soldier in a war. Bombing a civilian bus is being a terrorist) - damn...I am slowly losing my ability to support these guys. Paging General Clark. Paging General Wesley Clark.

Slate has part 4 of their 4 part series on the USA Patriot Act.

The UN has voted to lift sanctions against Libya (source: Major network news sites, that do not have actual stories posted yet).

I have to imagine that the US will be next to lift its sanctions

**update**According to FoxNews, the US and France abstained and the vote was 13-0.

A Federal Judge in New York blocked the dispersal of frozen Iraqi funds to families of 9/11 victims.

See Findlaw story here.

According to the story:

Earlier this year, Baer had concluded that Iraq aided Osama bin Laden's terror network prior to Sept. 11, 2001, when roughly 3,000 people died in attacks on the World Trade Center, the Pentagon and a hijacked plane that crashed in Pennsylvania.

Baer said lawyers for two victims "have shown, albeit barely ... That Iraq provided material support to bin Laden and al-Qaida."

This might be the only place in America where any kind of link between al Qaeda and 9/11 has actually been proven. Quick! Get a transcript! America needs this proof. Or at least, they should, since something like 70% of the people say they believe Saddam Hussein was connected to 9/11.

I say good ruling, because its the same result as if the suit had never happened - no Iraqi money going to the survivors. I say bad reason because the idea that the government needs the money more than the survivors is simply curious logic. The government operates a printing press and has flexibility. The judgment was for $63 or so million. Something tells me that the government would manage without the 63 mil, but the individual families might actually need that money.

But - how did this go to trial? Why was this not smacked down in the first place? Personally I don't think this had any business being in court, because I doubt a link to Iraq and al Qaeda has been proven. It hasn't been done by our intelligence agencies, so I doubt it was done by some personal injury lawyers from Philadelphia.

Secretary of Defense Donald Rumsfeld has stated that it is preferred that Guantanamo inmates from the WarOnTerrorism (c)(tm) not be tried and instead be held in Guantanamo Bay, Cuba for the duration of the WarOnTerrorism (c)(tm).

See Findlaw article here.

Quoting from the article:

"Our interest is in not trying them and letting them out," he said. "Our interest is in - during this global war on terror - keeping them off the streets, and so that's what's taking place."

This seems to fly in the face of every American tradition of justice. If these people are meant to be tried, then lets try them in a fair and open manner. If these people are POWs, then lets declare them as such and treat them as such. But to simply hold them, indefinitely, with no recourse, until an undetermined date, smacks of the 3rd worldism.

This is just more evidence that the US is being run by one of the most Kafkaesque regimes in our history.

Tommy Chong, of Cheech & Chong fame, was sentenced today to 9 months in prison and $20,000 in fines for operating an online store where he sold marijuana pipes and bongs. He was also given 1 year probation, ordered to relinquish the domain names he operated under and was required to forfeit $103,000 from sales.

See Findlaw article here.

Maybe its just me, but perhaps with our never ending WarOnTerrorism (c)(tm) we can take our federal justice divisions away from playing Muttawa and going after people who sell bongs for smoking pot, and have them go after people who want to plant bombs and blow us all to pot.

This is a waste of time, money and resources that can be better spent. It is also a signal to the world that we still dwell in the dark ages of communal morality when it comes to victimless acts.

According to a Denver Post story here.

According to the story:

The Air Force Academy commander formerly in charge of cadet discipline said she never knew of a "true rape" at the academy but was aware of a boozy "frat culture" at the school that led to "nonconsensual activity."

Col. Sue Slavec,who was ousted as training group commander as the sexual-assault scandal at the school heated up last spring, said that in the cases she was aware of, there was "contributing flirtatious activity."

Is this just more blaming the victimism? "[C]ontributing flirtatious activity"????? (one has to wonder what this standard was...if a male cadet told a female cadet she looked nice, and she responded with "you look nice too" - was that "contributing flirtatious activity"???)

Boycott Delta website contains information on some of the problems associated with the government's color coded air travel system (its called boycott delta because Delta will be the test case). Some items from their webpages:

What will Delta do?

Run a credit check on you;
Investigate your banking history;
Run a criminal background check.

All the information gathered will be stored for fifty (50!) years on computers that may or may not be safe from malicious hackers out to steal your identity. Airlines can barely be trusted with luggage. Do you really want to trust Delta with your bank account, SSN, mother’s maiden name, and credit rating? By their own admission, Delta’s computer servers are attacked over 500 times a day.

Plus, of course, we can't forget that perhaps Delta might be able to use this for their own marketing purposes. Pretty scary stuff indeed.

If this disturbs you, the Electronic Frontier Foundation has an action webpage worth looking at as well.

Via CounterSpin, here is a story from NBC17 about someone who passed a bogus $200 bill at a Food Lion supermarket - and they actually took it!

To quote from the story:

The bogus bill -- the U.S. Mint does not print a $200 bill -- bore the image of President George W. Bush on the front and had the White House on the back. It also included signs on the front lawn of the front lawn of the White House with slogans such as "We like broccoli" and "USA deserves a tax cut," Roanoke Rapids police said.

Instead of being labeled a Federal Reserve note, the fake bill was marked as a "Moral Reserve Note." The bill bore the signatures of Ronald Reagan, political mentor, and George H.W. Bush, campaign adviser and mentor.

Here is Part 3 of Slate's 4 part article on the facts and fictions of the USA Patriot Act.

They also have an interesting article about myths surrounding 9/11, and what people believe to be true, but in reality isn't. Myths such as Zacarias Moussaoui being the 20th hijacker (and that he only wanted to learn how to fly planes, not how to take off and land), plans to use cropdusters, the predictability of the 9/11 attacks and Iraqi involvement in 9/11.

422,000 new unemployed, according to Briefing.com's economic calendar.

Its interesting to note that up until about 2 weeks ago, there was a streak of weeks where the numbers were coming in a few ticks under 400,000 (400,000 is considered sort of a benchmark for whether the employment picture is improving, stagnant or getting worse), the media was consistently trying to sell us on how the employment numbers are in fact coming in below the bench mark (ostensibly a good thing, although I will note that the following week, when new numbers are released, the previous week's numbers have continuously been revised upward) and how the recovery is around the corner.

When you look at the numbers, here is what you see. An incredibly long string of above-400,000 weeks. Several weeks - perhaps about a month of sub-400,000 numbers (note that most of these have been revised the following weeks to close to 400,000). Now we are on a string of over-400,000 weeks again.

All this adds up to a job market that remains very weak. But predictably, this continued slump isn't a terribly big story with any of the major news networks, although I will forgive some of it today because it is the 2 year anniversary of 9/11.

CNN has a story here that has some interesting paragraphs:

Though the economy's growth has clearly accelerated in the late summer and fall, the long-suffering labor market has shown few signs of recovery. Many economists now believe the economy's problems are structural rather than cyclical, that technology-driven gains in productivity have enabled manufacturers to make more goods with fewer workers.

Many manufacturers, and many politicians, say competition for cheap labor from other nations, particularly China, has made it difficult for U.S. businesses to hire U.S. workers, and have called for measures to level the playing field, including forcing China to revalue its currency

This does not bode well for the Bush administration. Even worse, it does not bode well for the working public.

TalkLeft, as usual, has an excellent piece on the upcoming Patriot Act II, pesumably aka the VICTORY Act (Vital Interdiction of Criminal Terrorist ORganizations), to be introduced today by G W Bush.

Nothing like standing on the graves of 3,000 in order to get your agenda pushed forward.

Maybe Patriot Act III can codify Rumsfeld's claims that if we speak out against Bush's policies, we are really helping the enemy.

Here is the link to Part II of Slate's guide to the USA Patriot Act.

The Muttawa (aka the Religious Police) have decided that:

"Jewish Barbie dolls, with their revealing clothes and shameful postures, accessories and tools are a symbol of decadence to the perverted West. Let us beware of her dangers and be careful," said a poster on the site.

The article also points out:

Women in Saudi Arabia must cover themselves from head to toe with a black cloak in public. They are not allowed to drive and cannot go out in public unaccompanied by a male family member.

See CNN article here.

I seem to be having a flashback to our initial war with Afghanistan in late 2001, and all of these speeches from President Bush about how he was outraged that women were not treated as equals in Afghanistan and that they deserve all of the freedoms yada yada. Aren't you having that flashback too? They are not a democracy, they are not free, they are not market oriented and they do not believe in equality. Someone remind me again why we bend over backwards for Saudi Arabia?

Short version: We are trying to send a strong message, and we will beat up on little kids if we have to.

Long version: The RIAA has settled one of their lawsuits among the 261 they filed the other day. Let me start with a quote from the story:

Brianna LaHara agreed Tuesday to pay $2,000, or about $2 per song she allegedly shared.

"I am sorry for what I have done," LaHara said. "I love music and don't want to hurt the artists I love."

The suit claimed LaHara had been offering more than 1,000 songs on the Internet, using the Kazaa file-sharing service.

The kicker? Brianna LaHara is 12 years old.

See CNN story here.

Another quote from the story:

"We're trying to send a strong message that you are not anonymous when you participate in peer-to-peer file-sharing and that the illegal distribution of copyrighted music has consequences," said Mitch Bainwol, RIAA chairman and chief executive officer. "And as this case illustrates, parents need to be aware of what their children are doing on their computers."

It is highly dubious that an 11 or 12 year old has the capacity to commit the acts that she is accussed of. I am sure that a 12 year old is not well versed in the intracacies of copyright law.

Don't get me wrong. I think that a good case is made that filesharing is illegal, and I am miffed that so many people in our society think that its ok to steal music online but would never steal a music CD from Media Play or a piece of clothing from Dillards. Admittedly there is a problem, because growing up it never seemed to be a problem for people to make copies of music onto tapes for their friends. In fact, it seemed pretty common. Of course, in retrospect, it may have been common, but the scope was limited. You could make a copy for your friend, and your friend could make a copy for his or her friend. But there were two limitations: First, geography held the scope of copies in check. Second, tapes tend to degrade in quality from copy to copy. Obviously the proliferation of several things (broadband internet access, cheap CD burners and even cheaper hard disks, MP3 Players and blank CDs) allowed a tolerable situation to get out of hand really easily.

However, something strikes many people the wrong way when they hear that a 12 year old kid was targeted for a lawsuit, because it is debatable whether a 12 year old really appreciates the concept of copyright. Hell, I know a great many adults who struggle to understand what a copyright really is, so I do not expect a 12 year old to do the same.

My guess is that they targeted a 12 year old to scare parents. My guess is that they settled quickly because (A) they wanted to keep in the news that they would target their kids, while (B) at the same time avoiding the sort of bad press a big judgment against a 12 year old or an expensive trial against a 12 year old would bring.

Links to more information:

• Recording Industry Association of America (RIAA)


• Boycott RIAA


• RIAA Radar (find out which albums are released by RIAA)


• Negativland's Intellectual Property Issues

United Airlines is asking the Bankruptcy Court to extend its plan exclusivity period another 6 months. Come October 6, United must file its plan (this period has already been extended once) or the gates will be open for other interested parties to file plans for United. United is now asking until April 6.

See Findlaw story here.

It makes you wonder why UAL is taking so long, although they probably have an unfathomable amount of creditors knocking on their door trying to make sure that they are first in line.

Hearing is set for Sept. 19th. I am personally still unsure about whether UAL is going to continue to limp along and "make it" or whether they will finally liquidate and/or try to reform as a smaller more cost effective carrier with competitive fares.

Two different suicide bombing attacks in Israel. See Foxnews story here.

One gets the feeling that we are trapped between Scylla and Charybdis in the Middle East and Persian Gulf area.

***update*** Read this paragraph from CNN:

Ahmed Qorei, the designated Palestinian Authority prime minister, condemned both attacks, saying they are not helpful.

Not helpful? Good to see someone in the PA taking a vigorous stance on the issue.

A federal court judge has ruled that plaintiffs can go ahead with their lawsuits against American Airlines, United Airlines, Boeing and the Port Authority of NY/NJ.

See AP story here. Via Fark.

Some selected quotes from the story:

The crashing of a hijacked jetliner was the kind of "foreseeable risk" that the airline industry should have guarded against, a judge ruled Tuesday as he permitted lawsuits related to the Sept. 11 attacks to proceed.

U.S. District Judge Alvin Hellerstein said negligent security screening could have contributed to the deaths of 3,000 people in the 2001 attacks on the World Trade Center and the Pentagon and the crash of a hijacked plane in Pennsylvania.

"The aviation defendants controlled who came onto the planes and what was carried aboard. They had the obligation to take reasonable care in screening," he wrote.

In his 49-page ruling, Hellerstein said that while it may be true that terrorists had never deliberately flown airplanes into buildings, "airlines reasonably could foresee that crashes causing death and destruction on the ground was a hazard that would arise should hijackers take control of a plane."

"The intrusion by terrorists into the cockpit, coupled with the volatility of a hijacking situation, creates a foreseeable risk that hijacked airplanes might crash, jeopardizing innocent lives on the ground as well as in the airplane," he added.

"In order to be considered foreseeable, the precise manner in which the harm was inflicted need not be perfectly predicted," Hellerstein wrote.

Now granted, the Judge needs to view it in a light most favorable to the plaintiffs, and obviously nothing has been proved yet (this only means that if the Plaintiffs prove their case, the Defendants could be held liabile. But this opens the door to potential liability for the airlines, Boeing and the Port Authority and could be a devestatingly groundbreaking case.

Its tough to see, however, where these cases will go. For one, while it might have been forseeable that a terrorist incident would result in a plane crash, it also flies in the face of traditional terrorist attacks of the past, where the mantra was 'cooperate and you will eventually go free'. So while it may have been forseeable, can you truly argue that it was "reasonably" forseeable? You can bet that if Plaintiffs win this case, this goes immediately to an appeal.

Boeing has no liability that I can think of, except that they design the planes and I suppose the planes did not have inpenetrable doors (you can argue that nobody did, but El Al has had, for the longest time, pretty much inpenetrable cockpits - so such technology and ideas were known and thought of).

The article mentions the Port Authority in connection with the World Trade Center property, but it is possible that they might have been named in connection with their control/ownership of Newark Liberty International (EWR), which one of the hijacked jets left from (the one that crashed in PA). (I am not sure who owns/controls Logan or the DC airport (Reagan? Dulles?) where the other planes left from - thus they might avoid this suit on sovereign immunity - though where are the private security companies that were working these places?)

Either way, should be an interesting case, and we'll follow it as it develops.

Airports are supposedly phasing in over the next year their system designed to assign a color code to each passenger based on the level of threat risk perceived to each passenger. Red Yellow or Green, just like a traffic light. If you are designated a "green" color, then you will be able to get through security pretty easily. Yellow passengers will be designated for extra screening, and red passengers will be unable to board the plane, questioned by police and might be arrested.

See Washington Post story here.

Unfortunately, the story doesn't go into what the criteria will be - thats probably going to be kept secret. But wouldn't you love to know? Will it be a point system? Each possible negative is assigned a point value? 0-7 keeps you green? 8-16 yellow, and 17+ red? Will your late payment to Citibank on your Visa card give you a point? Will being a muslim give you 3 points? Will being an American citizen who was born in Yemen give you 7 points? Will wearing a shirt with the palestinian flag on it give you 5 points? Will having donated to a Palestinian cause give you 10 points? Will neighborhoods be red-lined? Will living in Cherry Creek (a wealthy suburb of Denver) give you 0 points but living in Greeley (a working class town an hour northeast of Denver) will give you 4 points?

You can imagine just how intrusive such a system might be. Maybe it will connect to the DMV and other government offices. How is my driving record? Do I have a lot of tickets/points on my license? Did I run a stop sign at 70 MPH and kill a guy on a motorcycle (probably not good pointswise, but still good enough to be a Republican member of the House of Representatives). DId I vote in 2000? Oh, even better, what party am I affiliated with? Who did I vote for in 2000? Naderites can be set aside for special interrogation (or praise, if you are GWBush in Florida). Do I drive a nice car? Is it a Volvo? Is it a Plymouth? Is it 2001 or 1971?

What about my magazine subscriptions or organizational memberships? Soldier of Fortune might be good. Membership in the NRA might be good. The Journal of Radical Political Economics might not be quite so good. Aquarium Fish magazine might be really bad. And lets not even get into truly radical groups like Food Not Bombs (who reclaim good food and use it to feed the poor and hungry).

What about my credit scoring? Did I have to get a subprime loan, or was I able to qualify for that nifty 5 & change % interest loan? Did I get a good rate on my car lease? Did I use a favored bank? Oh, crap, I used Flagstar! What the hell was I thinking?! Isn't everyone on the face of the earth supposed to be using Washington Mutual these days?

How about my job? Am I brick layer? Am I a lawyer? Lawyers are bad. Just ask insurance companies. Firefighters and cops would probably be good as far as the system is concerned. What about the guy who dries off my car at the carwash? What about the lady who always rings my order up at Safeway? She seems nice, but maybe she is secretly putting a little nicotine on every item I eat - so she'd better get a point (not because she is a known risk, of course, but because she has the opportunity to do harm).

Now maybe its just me, but this seems to pose a number of issues. One thing is the secrecy of the system. Oh, they'll argue that if we let people know how the system works, then the terrorists will find out as well. Oh well, this is a price we pay for living in an open society. Supposedly, if you believe Bush and Co., they hate us because they hate freedom. So we have a couple of choices - we fly the flag higher, aspire to be free-er, or we put down our sail, lower the anchor and raise the white flag and in a scared little voice say "we must limit our freedoms in order to save ourselves."

Issue number one: What role will racial profiling play in such a system? We can generalize that a substantial number of the large scale terrorists that have attacked this nation inflicting large numbers of casualties are of arab or persian descent. It isn't always true (Timothy McVeigh and Terry Nichols come to mind), but since the 1970's, I think we can say that the numbers are better than 50%. However, there is a temptation to engage in a pattern of logic suffers from the fallacy known as inverse contra positive. Just because most larger scale terrorists targeting American interests have been arab/persian, obviously not all arabs and persians are terrorists. But we still might have a system where we are singling people out solely on this reason.

Issue number two: Who, if anyone, will sustain liability for individuals who are falsely denied bording of a plane and then arrested and/or questioned by the police? This appears to be a system being implemented by several different groups - airlines, airports and governmental agencies.

There are many other issues that can and will appear with this, but this is already getting too long. I would say that we need to keep a watchful eye on the system and not fall into the trap of "its only a very small number being detained" so it doesn't personally affect you (the whittling away of civil rights for one is a whittling away of civil rights for all). And ultimately, we need to hold people accountable for this system of it creates problems.

In an attempt to expose myths and truths about the USA Patriot Act (passed in the wake of 9/11), Slate is doing an online 4 part expose' on the act. Today's article covers Section 215, which:

What it does: Section 215 modifies the rules on records searches. Post-Patriot Act, third-party holders of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without your knowledge or consent, providing the government says it's trying to protect against terrorism.

I am pretty sure most of you could guess my views on the USA Patriot act. Slate makes an excellent point by saying:

There have also been a raft of op-eds and articles—some evidently written by Ashcroft's U.S. attorneys at knifepoint—simultaneously making the point that the act has staved off unspeakable acts of terror while maintaining that it made only tiny infinitesimal changes to the existing laws.

The obvious point is that if the changes are so infintesimal, did they really stave off repeated terrorist attacks? Or are (any?) terror attacks being staved off because the law is so draconian.

But I don't know which is scarier...some of the powers within the USA Patriot Act (and its recent new twin, Patriot Act II, now known as the Victory Act (very clever - for Vital Interdiction of Criminal Terrorist ORganisations - ie, we want to drag the war on drugs into the war on terrorism - I guess that way we can lose both at the same time)), or the fact that it is likely that most of the congress-critters who voted for it never actually read the thing.

I will wait for the entire article to finish publishing before I comment on it, but I will put up a link each day for it.

In the World According to Donald Rumsfeld, Sec. of Defense, those who criticize the Bush administration's policies were:

encouraging Washington's enemies and hindering his 'war against terrorism.

This according to the Washington Post article here, via Today in Iraq.

I'm sure that Saddam Hussein, hiding out with his fighters, and Osama bin Laden, also hanging out with their fighters, are saying "we just received a dispatch that Russ of Legal Memo-Random has spoken out against US policy - we may now begin our operations!"

Can't you just see it? I could, if only I were on drugs. But I appreciate the attempt to stifle dissent. Afterall, you're either with us or your against us.

Randolph Vinton Haas has filed a lawsuit in federal court seeking compensation for having to spend an extra 163 days in prison due to Texas prison officials not properly calculating his sentence to include time served during the trial phase. A Texas Appeals Court has already found that Haas was kept longer than he should have been. Haas is seeking in the neighborhood of $80,000 in compensation and payment of legal fees.

See CNN article here.

There is a telling paragraph in the article:

Texas Department of Criminal Justice General Counsel Carl Reynolds said there is a distinction between wrongful imprisonment and keeping someone locked up because of a mistake in figuring credit for time served.

Unfortunately for , I am sure that Haas was little able to console himself with such logic while he was unlawfully held for nearly an extra half year.

We are not talking about a day or a few extra days behind bars. We are talking about nearly 1/2 a year of someone's life being spent behind bars where such was not warranted or permitted. Even if the guy is convicted felon.

The state of Texas should pony up and pay some fair and equitable compensation to this guy. For the Courts to permit this sort of thing to happen without holding the responsible parties liable would mean that most incentive is removed for prisons to properly calculate prison time.

Carl Reynolds argues:

Prison officials have "a greater fear of releasing someone prematurely" than holding someone too long, Reynolds said.

He said 14 prison system employees specialize in time-calculation issues.

"It's tough to keep up with 150,000 people," Reynolds said, referring to Texas' prison population.

Sure its tough to keep up with 150,000 people. But geezus, the guy was sentenced to 20 years. How much of that time did you have to get it right!?

Excuses, excuses. Prisons are, in part, about people taking responsibility for their actions. The time is now for the state of Texas to take responsibility for its screw up.

According to CNN in a "Late Breaking News" (isn't everything late breaking news to them?), the RIAA has filed over 250 lawsuits against alleged music downloaders. Still waiting for an actual story regarding the suits, and will post more when its available.

**update**Here is a story from Yahoo.

To quote from the article:

RIAA President Cary Sherman in a teleconference today characterized the people who were sued as "major offenders" who distributed about 1,000 copyrighted music files on average.

The interesting thing is that there is an amnesty program being offered, wheren no suit would be filed by the RIAA with a promise to never illegally download again.

The amnesty program, reports of which surfaced last week, would require file sharers to admit in writing that they illegally traded music online and vow in a legally binding, notarized document, never to do it again. The amnesty would not apply to anyone the RIAA already has subpoenaed for information regarding file swapping.

The problem here might be just how broad an agreement this might be. Any such agreement may cover the RIAA, but the RIAA doesn't represent everyone, and its not even clear whether the agreements would block individual artists or companies from suing - just the RIAA. But in exchange for this probably fairly limited non-sue agreement, you are admitting guilt and possibly liability! This could possibly be used against you by other entities that will be able to sue.

Seems like a crappy deal to me.

The Colorado Supreme Court is scheduled to hear 3 hours of oral arguments regarding an attempt by Colorado Republicans to redistrict the state only 2 years after the Courts were forced to intervene following the 2000 census.

Salazar filed a lawsuit directly to the Supreme Court, arguing that redrawing districts a second time in a decade violated the state Constitution.

"To allow the state to be redistricted multiple times in a single decade plays havoc upon the rights of voters and their sense of community," the attorney general argued in court briefs.

He asked the court to bar Republican Secretary of State Donetta Davidson from enforcing the new districts.

Davidson fired back with her own lawsuit, also being considered during the arguments Monday, asking the court to rule that Salazar lacked the authority to seek a court order preventing enforcement of the new map.

See Findlaw article is available here.

It is my belief that the intent of the Co Constitution is to have redistricting done only once every 10 years with the census. I base this on what I've read out of Colorado's blue book (before each election, voters are sent a blue pamphlet that details each issue on the ballot, and gives the pros and cons from each perspective).

It is unfortunate that the Republicans have chosen this issue to pursue. While nobody seemed terribly thrilled with the Court's redistricting plan a couple of years ago, in reality it evenly divided the new House district that was awarded to Colordo and resulted in one of the closest and most hotly contested race in the US in 2002, with Bob Beauprez barely edging out Mike Feeley.

The worst thing is that Republicans and Democrats treat voters as if they are there to be taken for granted. Its an attitude of entitlement that should really anger a lot of people, but it doesn't.

This matter in the CO Supreme Court today could be a bench mark for the rest of the country on redistricting and could provide guidance to other courts on how to handle this issue.

Either way - the Republicans in Colorado, Texas and California have opened a pandoras box.

The US Supreme Court is returning today, a month early, to hear arguments regarding election campaign finance reform.

See CNN story here.

Hopefully their eagerness to tackle this issue means that they are going to make a more definitive decision regarding campaign finance reform.

CNN's headline on their main page:

CNN/Money: Unemployment rate falls

The leadoff of the actual story (the headline on the actual story link is a bit more accurate) is:

NEW YORK (CNN/Money) - Employers slashed nearly 100,000 jobs in August, the government said Friday, defying private economists' forecasts for an increase and highlighting fears that the labor market could be slow to catch up to stronger growth in the rest of the economy.

Lets see here... Unemployment did drop from 6.2% to 6.1%, but there are now 100,000 less jobs due to slashing of payrolls in August. That is suggestive of bad news: That the labor market is so poor, that people are giving up on looking for jobs. It is not suggestive of the good news that would normally accompany "Unemployment rate falls".

See CNN story here.

So lets hear it for CNN, for spinning a pretty crappy news story into a much better sounding headline on their main page.

Attorneys for Robert Skakel, a Kennedy relative who was convicted in 2002 for the murder (in 1975) of Martha Moxley, claim that they have new evidence of Skakel's innocence and are demanding a new trial. Both Skakel and Moxley were 15 at the time of the murder. Skakel is 42.

See CNN story here.

If Skakel was in fact guilty (and for the time being, he should be thought of as a convicted murderer, since that is what he is), this re-presents the dilemna of what to do with juvenile offenders.

On the one hand, you hate to see someone "get away with murder" because they happened to slyly evade prosecution for 25 years. On the other hand, who this person is at 42 is probably not the same as who he was at 15 (although that can be said for all criminals, I am sure).

I have no easy answers, except to say that its a shame that our juvenile and criminal justice systems lack any kind of creativity for constructively dealing with these people.

From HIPAA Blog, see article here. Via Kill as Few Patients as Possible.

As many of you may know, Texas voters will be asked to approve Proposition 12 next week, which sets caps on non-economic damages (mostly aka pain and suffering - note: it does not cap true economic damages, such as medical bills, loss of wages, etc.).

I've repeatedly stated my viewpoint here that this is akin to dragging out a lawn mower to deal with a small weed. To be sure, there are problems with some med-mal judgments, but we should deal with it by dealing with those decisions that are outrageous:

• (1) Frivilous cases should be dealt with by disciplining attorneys who push them.


• (2) Bogus medical centers should be dealt with in a similar manner (I'm thinking of the crush of No-Fault spun 'medical treatment facilities' that exist in NY and seem to exist solely to serve No-Fault cases (rather than existing to treat injured patients)).


• (3) Enact laws nationwide that require professional review before any malpractice cases can go forward. Colorado has a law that I believe requires a professional review by a qualified professional of the facts to determine if there is a basis for a malpractice claim within 60 days. This is certified before the Court.


• (4) If it is deemed necessary (and I don't think it is) to enact some sort of non-econ loss cap, (A) it should not be as low as $250,000, (B) an exception should be carved for severe loss (loss of limb, for example), and (C) an exception should be carved for truly egregious or reckless conduct.

HIPAA Blog argues:

However, giving an economic award (money) for a non-economic injury (pain and suffering) is unnatural...

HIPPA Blog also points to a diminished number of insurance companies servicing Texas area doctors:

Secondly, there is some merit in the physicians' and hospitals' argument that runaway jury awards are running them out of business. There were 20 med mal insurance companies in Texas just a few years ago; now, there are 4. If they are really making money hand over fist, and just want to protect their obscene profits at the expense of the working man, then how come so many of them have run off?

I've stated before: It is my belief that in part, this is an insurance industry game. I do not blame the doctors, nor do I think all doctors are bad (especially any in my family, if they are reading this). I think that there are serious legitimate problems that confront doctors in dealing with insurance premiums that need to be addressed. But doctors will see that their rates will not be reduced proportionately to the level of exposure that remains for insurance companies. We have seen this in Colorado with No-Fault, where we were promised lower insurance premiums in exchange for dropping No-Fault. Well, technically, we pay less for insurance because we don't pay for PIP, but then they raised Liability and Uninsured/Underinsured by double-digit percentages, plus began offering Auto Med Ins. coverage to cover passenger medical bills (hmm...a replacement for PIP?), plus hawking umbrella policies. In fact, your rates might be reduced slightly (mine has gone up for less coverage), but you are getting much less in return (its like how a can of coke is 90 cents at the convenience store and the 1 liter is $1.09. You save more by getting the can, but you get much less).

The system needs to and can be fixed. Texas Prop 12 is not, as far as I can tell, the way to do it.

Fox news ups the guffaw level by un-ironically reporting that terrorists plan to use nicotine to inflict a terrorist attack in the United States.

See FoxNews story here.

I'm not sure what to say in response to this. I am sure that there is a joke in there somewhere about the American tobacco industry, but it seems a little too obvious to make.

Miguel Estrada, a Honduran immigrant nominated for the DC circuit Court of Appeals, has withdrawn his name from consideration after Democrats successfully stalled his nomination proceedings.

See CNN story here.

I appreciate the need for the fillibuster. I think it can be a useful tool to protect the minority in Congress, be it Republican or Democrat.

Its sad and hypocritical that the Democrats are blocking these nominations after enduring the same garbage under the Clinton administration. It is also sad and hypocritical that Republicans are complaining after they used similar tactics to stop Clinton appointments.

Bring them up for a yes or no vote. The Judicial branch is supposed to be the third branch of our three pronged system of checks and balances. It should not fall victim to this level of partisan bickering - even if I disagree with the viewpoints of the judges being nominated.

The US Dept of Energy has announced that it will be looking into the latest gas price spike in the wake of the War with Iraq, the Northeast blackout and the pipeline disruptions in the Southwest.

See CNN story here.

Considering what we know and what we suspect in connection with the California energy crisis of a few years ago (that energy companies took advantage of the situation to manipulate the market and gouge consumers, it does not seem unrealistic to think that the same thing could have happened again on a national scale...conveniently timed plant shutdowns, closing the spiggot on supply, etc. to artificially raise prices.

It is also worth noting that following the war with Iraq, oil has remained relatively high (where are our good friends Saudi Arabia and Kuwait helping prop supply up? Oh, they're probably out on the golf course helping OJ Simpson catch the real killer).

Finally, it is worth noting that it didn't take that much to spike the prices up. Are our supplies that tight??? It suggests that it would not take very much effort from terrorists to disrupt supply and cause a fuel panic in the nation. Tom Ridge? Are you paying attention? Maybe we can come up with something a little more useful than red orange yellow blue and green to deal with our alleged war on terrorism.

A Hollywood, Fl man was arrested for violating the "Truth in Domains Act" (Sidebar: Is this a Florida law? A federal law?). The man is alleged to have registered and created a number of websites that play on people's nasty habit of mis-spelling words. We've all done it. Accidentally misplace one letter and suddenly you're bombarded with never ending popup ads hawking any type of porn you can imagine. What makes it worse for John Zuccarini (the man arrested) is that many of them allegedly played on children themes (nsyc instead of nsync and dinseyland.com, as well as Bob the Builder and Teletubbies). There appear to have also been a number of civil suits connected with this case.

See Forbes article here.

Truth in Domains Act? Where does this stuff come from? It'll be interesting to see how this case turns out, although I suspect that with a childrens surfing connection, he'll settle ASAP because misdirecting 6 year olds to a porn website is not going to win you friends.

A former EPA Inspector General is pointing the finger of blame directly at the White House regarding a report that was changed to suggest to people that the air and water around NYCity was safe immediately following the 9/11 WTC attack.

See MSNBC story here.

Quoting from the article:

So what happened? Tinsleys report charges, in the crucial days after 9/11, the White House changed EPA press releases to add reassuring statements and delete cautionary ones.

Sept. 13: The EPA draft release never released to the public said: EPA testing terrorized sites for environmental hazards. The White House changed that to EPA reassures public about environmental hazards.

Sept. 16: The EPA draft said: Recent samples of dust ... on Water Street show higher levels of asbestos.

The White House version: New samples confirm ... ambient air quality meets OSHA [government] standards ... and is not a cause for public concern.

And the White House left out entirely the warning that air samples raise concerns for cleanup workers and office workers near Water St.

This has to raise serious questions about the credibility of the US government. You can understand the need to not panic people even more following 9/11, but if they were lying to them and putting them at even more risk...

This according to CNN, story here.

Hill, as you may recall, was a minister who murdered a Florida abortion doctor and his bodyguard in 1994.

The telling quote is:

"I expect a great reward in heaven," he said in an interview Tuesday, during which he was cheerful, often smiling. "I am looking forward to glory."

I feel like there is another group of people wandering the earth, killing people, who use the same rationale. We can all guess which groups it is.

Either way, I still believe the death penalty to be wrong.

Effective November 10, 2003, new rules will be going into effect that somewhat limit what hospitals need to do for you in an emergency situation.

See NY Times story here (registration required, but its free).

Under the Emergency Medical Treatment and Labor Act of 1986 (EMTLA) any hospital that participates in Medicare and offers emergency services must offer any person who comes in a medical examination and offer medical care to stabalize any patient requiring emergency care, regardless of ability to pay.

The new rules will limit all hospitals from having to have doctors on call 24/7, as well, 1 doctor can be on call for 2 hospitals, or schedule elective surgery during his or her on call period. The new rules will also more clearly define the scope of coverage within medical campuses. Under the old rules, that professional building attached to the hospital, if owned by the hospital, could fall into the scope of EMTLA. Now the scope will be limited to the emergency room.

The new rule makes clear that the law does not apply to doctors' offices, rural health clinics, nursing homes or other "nonhospital entities," even if they are adjacent to the main hospital building and are owned or operated by the hospital.

Finally, the new rules will exempt admitted in-patients from EMTLA.

I have mixed opinions about this, as a general fan of the concept of universal medical coverage. I know that some hospitals are severely burdened by people who use the emergency room for routine medical care. I appreciate that creative solutions are needed. There have been times in the Denver metro area where hospitals have been so overwhelmed, nearly every Denver metro hospital has simultaneously been on divert (meaning they will not accept new patients into their emergency room).

First, I strongly agree with the concept of defining the emergency room as the place where the law applies. Professional buildings and off-campus facilities are not equiped for emergency situations. This is not to say that these facilities would become cold and callous buildings where if you stumble in with a gun shot wound, they'd direct you to the nearest payphone. I doubt this would happen simply for the reasons people tend to go into the medical profession in the first place. However, if you are shot, the lobby of the local professional building, even if a part of the hospital campus, is not the place to go for treatment anyway.

Regarding docs on call, I am sure this is difficult for doctors to deal with. I am unsure as to the impact that this will have on treatment, and would need to talk to family members who are doctors to get their opinion. I am also not sure how practical considerations will play into this. I also need to better understand the practical considerations of treating inpatients as non-EMTLA patients. Presumably, in theory, in-patients are not emergency room cases anyway. But how will hospitals handle these cases? "Excuse me sir, in room 2003, you're going into cardiac arrest - can you pay your bills?" I am sure this will not happen, but again, I need to know how this will work in the real world.

I support some of the reform, because logically, it just makes sense to me. However, I think that this further exposes the need to revamp our overall medical care system in this country. We may or may not need a Canadian style Single-Payer system, but clearly we need to discuss the fundamentals in our medical care system.

It may be as simple (simple...right) as eliminating the insurance companies all around (both for medical care and for professional liability) and creating a quasi-governmental public-private corporation or set of corporations to provide insurance in the US, modeled after Fannie Mae (FNMA) and Freddie Mac (FHLMC) --> Actually, I have a plan for this, and I will post it some time in the near future.

But we shouldn't be afraid to talk about reform, and speaking your mind about changing the system shouldn't invite the instant labels of commie, socialist, class-warfare, etc. It is possible that hospitals can not or (because of public policy) should not operate under an economic system. It might be that what we are looking at is a failure of the market system (even under a purely capitalist system, market failures happen).

Texas Prop 12

Was reading a blog called Kill As Few Patients as Possible (is that a great name or what...found it while poking around Ernie The Attorney's website). He has an interesting column, from a doctor's perspective, on what the $250,000 cap on non-economic damages means in the med-mal debate. I don't agree with his conclusion, but I do think its worth a read. Click here for more.

The 9th Circuit Court of Appeals has overturned approximately 100 death sentences in Montana, Idaho and Arizona, citing the 2002 Supreme Court decision that requires death sentences be handed down by juries only, not by judges. The case will probably be appealed to the US Supreme Court. Colorado and Nebraska have similar laws that will likely have to be reviewed within the their respective circuits (Colorado the 10th Circuit, and I believe Nebraska in the 8th)

See CNN article here.

We are often told that anything coming out of the 9th circuit is not the most reliable thing in the world. The 9th circuit is huge covering Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon & Washington. It also includes decisions out of California, which tend to buck the national trend anyway. On the other hand, this decision doesn't seem terribly inconsistent with the Supreme Court's ruling.

Special note: I know that many people will complain that justice is not being done, or that these inmates are escaping punishment. The sentences were commuted to life in prison. Life in prison is not "escaping punishment" or whatever else you wish to derisively label this decision.

CalPundit takes a stab (?) at shooting down the (mistaken) argument made by insurance companies as to why we oh, so desperately, need medical malpractice/tort reform. Click here for link.

It does seem to me that the claims made by Insurance Companies and certain organizations overblow and overstate the problems. Yes, some awards seem obscene. Yes, malpractice premiums may seem high.

But the mere fact that the insurance companies are pushing these reforms should send a red flag to everyone, even supporters.

As many of you know, I have been a strong critic of Colorado's recent attempt to enact tort reform (our wonderful tinkering that allowed No-Fault/PIP to expire effective July 1, 2003). In our most recent experience, people were sold the line that they would save boat loads of money. I've already shown numerous times that if you want the same level of protection, you will not save money. In fact, my premiums adjusted in the double digit percentage range upwards for liability and uninsured motorist coverage, for no other reason than the expiration of No-Fault. You can save money if you want less protection. This is only useful for people who have no assets to lose in a lawsuit (they were proudly proclaiming that our non-no-fault system will be better because you fight it out in Court and the guilty party pays). Lets never forget that this was pushed by the same group of folks that argue that there is too much litigation. You wait: My prediction: The ins. industry is biding its time, and in a few years will complain that there is too much litigation, and that we need to do something about that as well.

Anyway...back to med-mal. One can't help but think that the same type of game is being played. If passed, the caps on settlements will not significantly reduce rates for doctors, will not increase access to doctors, and will simply result in a gift to the insurance industry. Which, I might add, is probably exactly what it is intended to do.

Jonathan Pollard, a convincted US spy for Israel, is scheduled to go before a Federal Court attempting to get permission to appeal his life sentence. In 1987 he pleaded guilty to one count of espionage and was sentenced to life in prison.

Pollard's life sentence came as a surprise to many observers, particularly because the Justice Department had agreed in the plea bargain not to call for the maximum term. No one convicted of spying for a U.S. ally had ever been given a life sentence.

See CNN story here.

Also, John Hinckley Jr.'s hearing (reported below) was postponed until November 3 to give the judge more time to review any evidence in the case and because there was not enough time to hear testimony.

See CNN story here.

Was poking around the Daily War News blog regarding Iraq and the War on Terrorism...entries just from today:

War News for Spetember 2, 2003

Bring em on: Car bomb destroys main police station in central Baghdad.

Bring em on: Two US soldiers killed, one wounded in Baghdad mine ambush.

Bring em on: Two US soldiers wounded in Fallujah mine ambush. A total of fourteen more US soldiers were wounded in six separate attacks over the weekend, which the miserable, limp-dick, incompetent, lickspittle toadies in the American media failed to bother reporting.

Bring em on: Grenade thrown at home of US-appointed Iraqi police general in Baghdad.

Bring em on: RPG attack on US troops in Baghdad. No casualties reported.

Shootout in Najaf. Shiite Badr Brigade attacks home of Hussein loyalists.

I would recommend this blog to you if you want to keep track of whats really going on, and not just the media's rah-rahing of the war. Click here for the blog. The best part is that all have links to sources (often CENTCOM for casualty reports).

John Hinckley Jr., the man who shot Ronald Reagan, is arguing today before a federal court that his mental condition is so improved that he should be allowed to have unsupervised visits with his parents.

Seen Denver Post story here.

This raises the question of the role of mental health facilities and illness in our criminal justice system. Accrording to the article, the government opposes the unsupervised visits on the following grounds:

Federal prosecutors objected, citing Hinckley’s “history of deception and violence.” They argued in their filings that Hinckley at one point had 57 pictures of Foster in his room, wrote to serial killer Ted Bundy before Bundy’s execution in 1989, and had praised Adolf Hitler and mass murderer Charles Manson.

Senior U.S. District Judge June L. Green canceled a hearing on a similar motion three years ago after prosecutors said Hinckley had a “continued interest in violently themed books and music.”

Maybe its just me, but 1989 was 14 years ago, and who knows when he praised Adolf Hitler and Charlie Manson or had those 57 pictures of Jodie Foster in his room. Interest in violent books? Does that mean he reads Stephen King? A little bit more specificity would help.

In the interim, the hospital supports the motion for unsupervised visits, and states:

“In our opinion, Mr. Hinckley has sufficiently recovered from his mental illness to be granted a limited conditional release without danger to himself or others,” D.C. Mental Health Director Martha B. Knisley said in a letter written on her behalf by Joseph Henneberry, acting associate director for forensic services.

Patti Davis, Reagan's daughter, says:

“I don’t believe for a second that John Hinckley is no longer mentally ill,” Davis wrote recently in Newsweek magazine. “If (today) John Hinckley is granted the right to walk off hospital grounds with no supervision, we should all ask some very serious questions about our legal system.”

Now, if we are of the belief that people who commit crimes because of mental illness may not have been control of their actions, and we can diagnose a mental illness, and we elect to treat it, shouldn't we at some point say that if cured, the person should be able to return to society? Afterall, this public policy suggests that we do not want to punish people who were not fully in control of their own actions.

In this case, we have the hospital saying that this man, Hinckley, is in full remission.

I find it interesting that they bring up Patti Davis' quote. I've never heard that Patti Davis is a mental health specialist, and I didn't know that Patti Davis is in possession of sufficient knowledge to make a diagnoses of Hinckley. So what is the point of her statement?

If Hinckley meets the criteria for unsupervised trips off the hospital premises, then he should be granted that right like any other patient at his facility.

Ticketmaster, who many beleive flirts with antitrust laws already, has decided to begin auctioning the best seats off to the highest bidder in an ebay style auction. This might begin later this year. See CBS News article here, via Fark.

I am not sure why this might break any laws (I certainly can't think of any), but there is a telling quote in the article:

"The tickets are worth what they're worth," said Ticketmaster CEO and president John Pleasants, in an interview with the Times. "If somebody wants to charge $50 for a ticket, but it's actually worth $1,000 on eBay, the ticket's worth $1,000. I think more and more, our clients - the promoters, the clients in the buildings and the bands themselves - are saying to themselves 'Maybe that money should be coming to me instead of Bob the Broker.' "

It might be interesting to see what the contracts say, and whether this is something that the venues, promoters and buildings are clamoring for, due to contractual setting of prices.

Even more important, this is a second clamp down by someone in the music industry against customers. Not a great move if your goal is to get people to begin paying for music again.