Rand Paul's Filibuster, Due Process, and Democratic Cowardice

I've never been a big Ron or Rand Paul fan. The elder's refusal to take responsibility for his racist fundraising emails in the 1980s is an inexcusable disgrace. Rand has publicly distanced himself from the "L-word," and proudly asserts his conservative bona fides. I am not anti-Pauls, but I'm not about to put a "Paul 2016" sign up in my window either.

But what Rand Paul did yesterday was remarkable and one of the greatest political moments of my life. For thirteen hours, Rand Paul held a basic--though imperfect--civics lesson, citing simple truths and fundamental rights that the Obama administration blithely asserts they can ignore. Only one Democrat, Sen. Ron Wyden, had the courage to quite literally stand up for what is right.

I say "imperfect" because, not only did he get some constitutional doctrine wrong, Paul became too distracted by "drones," the weapon with which the United States carries out much of its targeted killing program. Easily lost in his many hours of talk about drones and Hellfire missiles, Paul was making an extensive and coherent defense of Due Process and the fundamental rights every American has against his government. In the criminal realm, these rights include, but are not exclusive to:

• Right to habeas corpus (the government has to present just cause for imprisoning you)
• Right to counsel
• Right to face your accuser
• Right to trial by jury
• And, in the case of an accusation of treason Article III  § 3 of the Constitution is quite specific:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Two witnesses. Overt acts.  Open court. For all the ambiguity in the Constitution, the requirements placed on the government to pursue charges of treason against a citizen are about as unambiguous as the document gets.

Yet, there isn't one of these rights and protections that isn't violated in its entirety by President Obama's "Kill list."

Since the birth of government thousands of years ago, rulers and despots have been ordering enemies killed for both just and unjust causes. It is the most brutal use of state power and it has been used and abused throughout the history of civilization.

But for almost 800 years, Western legal tradition has forbidden its use against its citizens. The rights listed above aren't some product of a bleeding heart ACLU lawyer, they have been formed by our  understanding of the rights of man since 1215. For reference, Genghis Khan was pillaging China when England decided, "Hey, maybe we should put in some safeguards to protect people from being indiscriminately killed by our leaders."

There is nothing that changed on 9/11 that should upend the wisdom learned over the greater part of a millennium.  The brilliance and beauty of our 224 year old system of government is that, at great cost and over time, it has continued to expand, not restrict, these protections that once were given only to "free men." The ancient right to Due Process was crafted over centuries, ultimately codified in our Constitution, to protect citizens from the unilateral actions of a government entity.

And yet, we have an administration that claims the power of assassination by executive decree, with no geographical boundary, and no reasonable understanding of "imminent threat"--the standard used to self-justify their secret decisionmaking.

When directly questioned by the Senate Judiciary Committee yesterday, whether the government had this power to order the domestic killing of an American citizen away from any cognizable battlefield, Attorney General Eric Holder essentially admitted as much, though he said it was highly unlikely they'd use it. Holder half-assed his answers, obfuscating as much as he could, in order to not say outright that the government can kill you without oversight or due process at its whim, dismissing the question because it was "hypothetical."

Yet, for another hypothetical, Holder didn't back down from specifics. This is the exchange Holder had with Sen. Grassley:

GRASSLEY: Once again, thank you for coming up here. I want to follow up on your response to Senator Cruz. And I think he talked about introducing a bill. Do you believe that Congress has a constitutional authority to pass a law prohibiting the president's ability to use drone aircrafts, to use lethal force against American citizens on U.S. soil? And if not, why not?

HOLDER: Do I think the Congress has the ability to pass such a bill?

GRASSLEY: No, whether the legislation -- well, yes, Congress has the constitutional authority to pass a law prohibiting the president's ability to use drone aircraft, to use lethal force against American citizens on U.S. soil.

HOLDER: I'm not sure that such a bill would be constitutional. I think that might run counter to the Article II powers that the president has. I'd have to look at, obviously, the legislation, but I would have that concern.

GRASSLEY: OK. But your basis is -- the why not, it'd be because of Article II?

HOLDER: I believe so, yes.

The  Attorney General of the United States's first reaction to a hypothetical bill to ban domestic drone strikes is to "have concern" that the President's power may be limited. Yet, the hypothetical nature of a question whether the government could summarily kill a citizen on American soil prevents him from unambiguously supporting 800 years of common law and the explicit text of the Bill of Rights.

I have a hypothetical for the administration:

A train is bombed by terrorists, killing over 100 people. A fingerprint pulled from the reconstructed device comes up with a match in the government's database. The fingerprint belongs to a Muslim American citizen living in Oregon. The United States has tangible evidence that he is responsible for over 100 deaths of innocents. Can the government kill him?

These facts aren't really hypothetical. In the wake of the Madrid train bombing, Oregon attorney Brandon Mayfield was taken into custody and held weeks without charge for a misidentified fingerprint. He was guilty of no crime, but government agents threw him in a cell and denied him his constitutional rights for weeks. Due Process should have protected him, but because he was thought to be a Muslim terrorist, his rights were ignored. Presented with tangible evidence in the wake of a mass casualty attack, in a world in which American terror suspects are routinely targeted abroad, it doesn't take a slippery slope to reach the point where a presidential hit is put on an American citizen in the United States. It just takes one step and a call to clandestine operations.

So when a U.S. Senator took to the floor to bring this bold assertion to the forefront of the public eye, only one person from the party that prides itself on its civil rights bona fides stood up to even question the claim. One.

I do not believe for one moment that most of the Republican senators, or even all of the Republicans who raised questions last night, agrees with Paul. They used his filibuster as a political tool to attack Obama. Under a Republican administration--which not a few of them imagine themselves to be someday leading--many would have no qualms whatsoever with this power. But this was an opportunity for the Democrats to stand up for what they claim to believe in, at no conceivable political cost from their constituents, yet all but one sat on their hands. They said nothing. They'll get no such support against executive overreach from Republicans during a Republican administration, and they know it, yet they just sat idly by as one man spent 13 arduous hours explaining the fundamental importance of Due Process and how assassination by executive decree, with no oversight or recourse, is anathema to a functioning republic.

Their silence was cowardice. They should be ashamed of themselves.

bellum medicamenti delenda est

UPDATE:   Adam Serwer reports that Holder has answered Paul:

"It has come to my attention that you have now asked an additional question: "Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?" Holder wrote. "The answer to that question is no."

Sigh. The drone issue continues to obscure the fact Americans have no legal recourse against a secret executive order to kill them, whether at home or abroad.

Justice Sotomayor on Racism in the Criminal Justice System

Thousands of cases are denied certiorari (hearing) in the Supreme Court every year. These denials, as well as other Court business, are released on Orders Lists on a fairly regular basis while the Supreme Court is in session. At the end of today's list, however, was a comment on a cert denial that I wanted to bring attention to.

Justice Sotomayor, joined by Justice Breyer, took time to address the repugnant behavior that prompted the case, even though they concurred that it wasn't a reversible error and denied cert petition. I've excerpted the relevant pieces below, taking out the legal reasoning for why cert was denied.

I write to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark. It should not.
... 

 The issue of [Petitioner] Calhoun’s intent came to a head when the prosecutor cross-examined him. Calhoun related that the night before the arrest, he had detached himself from the group when his friend arrived at their hotel room with a bag of money. He stated that he “didn’t know” what was happening, and that it “made me think . . . [t]hat I didn’t want to be there.” Tr. 125–126 (Mar. 8, 2011). (Calhoun had previously testified that he rejoined the group the next morning because he thought they were finally returning home. Id., at 109.) The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

...

Calhoun, who is African-American, claims that the prosecutor’s racially charged question violated his constitutional rights. Inexplicably, however, Calhoun’s counsel did not object to the question at trial.
...

Given[...]the unusual way in which this case has been, litigated, I do not disagree with the Court’s decision to deny the petition.

There is no doubt, however, that the prosecutor’s question never should have been posed. “The Constitution prohibits racially biased prosecutorial arguments.” McCleskey v. Kemp, 481 U. S. 279, 309, n. 30 (1987). Such argumentation is an affront to the Constitution’s guarantee of equal protection of the laws. And by threatening to cultivate bias in the jury, it equally offends the defendant’s right to an impartial jury. Judge Frank put the point well: “If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice.” United States v. Antonelli Fireworks Co., 155 F. 2d 631, 659 (CA2 1946) (dissenting opinion) (footnote omitted). Thus it is a settled professional standard that a “prosecutor should not make arguments calculated to appeal to the prejudices of the jury.” ABA Standards for Criminal Justice, Prosecution Function and Defense Function, Standard 3–5.8(c), p. 106 (3d ed.1993).

By suggesting that race should play a role in establishing a defendant’s criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation. There was a time when appeals to race were not uncommon, when a prosecutor might direct a jury to “‘consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe’s home,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520 (1945), or assure a jury that “‘I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart,’” Taylor v. State, 50 Tex. Crim. 560, 561, 100 S. W. 393 (1907). The prosecutor’s comment here was surely less extreme. But it too was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.

It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.

Also troubling are the Government’s actions on appeal. Before the Fifth Circuit, the Government failed to recognize the wrongfulness of the prosecutor’s question, instead calling it only “impolitic” and arguing that “even assuming the question crossed the line,” it did not prejudice the outcome. Brief for United States in No. 11–50605, pp. 19, 20. This prompted Judge Haynes to “clear up any confusion—the question crossed the line.” 478 Fed. Appx. 193, 196 (CA5 2012) (concurring opinion). In this Court, the Solicitor General has more appropriately conceded that the “prosecutor’s racial remark was unquestionably improper.” Brief in Opposition 7–8. Yet this belated acknowledgment came only after the Solicitor General waived the Government’s response to the petition at first,leaving the Court to direct a response.

I hope never to see a case like this again. (emphases added)

I will not agree with much of Justice Sotomayor's jurisprudence, but kudos to her (and Justice Breyer) for admonishing the prosecutor and his federal apologists.

bellum medicamenti delenda est

UPDATE: Ken at Popehat brings up a good point: Why hadn't anyone called him out by name? (He is AUSA Sam L. Ponder.) I still think it's noteworthy that Sotomayor wrote what she did, but I leave to actual lawyers like Ken to complain whether or not namedropping him would be appropriate in the context of a legal opinion.

That said, Ken did what CNN, Chicago Tribune, other media (and I) failed to do: a casename search on PACER. Regardless of the reasons Justice Sotomayor didn't use Ponder's name, the media have a professional duty to find truth and should have done a simple search to find out. Thanks, Ken.

A Perspective of Time

This would probably be better if I had a Tumblr account, but I don't.

A perspective of time: 

I was 8 when I first heard racism directed at me. 

My youngest sister was born the year Malcolm was assassinated. She was about to turn three when Martin was killed. 

My father was 35 when DuBois died/during the March on Washington. 

My mother was 22 when Medgar Evers was killed. 

My paternal grandmother was 29 when Garvey's Black Star Line ceased operating. 

My paternal grandfather was 8 when Frederick Douglass died.

Tell me again about this distant past of which you speak.

bellum medicamenti delenda est

Some Thoughts on Fear and Gun Control

NB: my opinions alone, yadda yadda yadda.

As the New York Times noted this morning, most gun deaths in the United States are actually suicides—by a 2 to 1 margin. Thus, only about a third of Americans who die from guns are doing so by the will of another. Using 2012 data (courtesy of MoJo), there were 9,960 gun homicides in 2012, and roughly rounding the U.S. population using 2010 census data (~308,745,000), there were about 3.2 gun homicides per 100,000 people in America. That is, removing all risk factors, an American's chance of being shot to death in the last year was approximately .0032%. There is indeed a problem of gun violence in this country, but murder and other violent crime rates have been declining steadily over the past two decades. It's getting better, and we can find ways to make these numbers even smaller, but it's unlikely many of the newly proposed gun control measures will be effective in doing it. So why are they being pushed?

Earlier this week, a man was fatally struck by a train at DC's Gallery Place/Chinatown Metro Station during morning rush hour. I was running a little late that morning and that incident made me a lot later. At the time, we had no idea whether the person who was struck jumped, slipped, or was pushed, but everyone thinks getting hit by a train is tragic and awful. Yet, when the announcement came over my train's public address speaker, no one freaked out or even reacted at all, other than a couple eye rolls of frustration that their commute just got lengthened. No “Oh, that's a shame!” or “Oh my god, that's terrible!” Just a train of normal commuters reading their Kindles and filling out sudokus and crosswords like any other Tuesday train delay. A man's (presumed) death did not emotionally register with anyone on the train that I could tell.

While I was sitting there, I thought about the nonchalance with which the entire train took the person's probable death. I could be wrong, but I think that if he had gone to the platform at Chinatown at the exact same time for the exact same purpose, but pulled out a gun and immediately shot himself in the head, the reaction on the train at my station in Virginia would have been much different. Why?

Guns scare people. 

Despite the fact we stand on platforms waiting for zooming trains or get in automobiles unquestionably capable of killing us just as dead every day as part of our get-to-work ritual, people fear guns more even when used by someone on themselves alone. Sure, in theory, someone could pick up the gun after the man shot himself and harm others, but I would imagine most of the people on the platform would be too shocked to think “Oh, here's my chance to go on a rampage/rob a group of people at gunpoint!,” as if lack of opportunity is what prevents most people from doing it. Yes, guns are designed to be lethal whereas trains and cars serve other functions, but in this situation, the use of a gun would produce a much more shocking effect on the public—rather than just the witnesses on the platform and the poor train operator—despite being functionally indistinguishable to anyone but the emergency responders.

For comparison, 32,885 people were killed in fatal automobile incidents in 2010.* Roughly, then, any given American is more than three times as likely to die in a car accident than be shot to death if you ignore risk factors on both sides. That is, if you're not involved in the drug trade or in an abusive relationship, your odds of dying as a result of gun violence is even lower than the numbers above suggest.

There are numerous tragic exceptions, of course, but while firearms make violence easier, they are not the causes of violence. Policymakers should be addressing the causes of violence if the public safety were actually their primary goal. Instead, most of the gun debate operates on this emotional level detached from the actual harm to the general public because the people want to feel safe, despite the considerable safety most Americans already have.

This isn't to say we must preserve the status quo or that any new controls are an affront to the Constitution, because they may not be, but policies that are pushed by irrational fear of guns are unlikely to hinder gun violence because the root causes of most gun violence remain. Meanwhile, domestic violence and the Drug War rage on, and only so few in the gun debate are actually addressing them. 

bellum medicamenti delenda est 

*PS: Of course I understand that automobile deaths have decreased as cars have gotten safer and various other factors. But you're not going to make lethal weapons that much "safer" and simultaneously preserve their effectiveness. The point is not that cars are bad, but that the fears surrounding gun control are not generally borne out by statistics.

The Only Thing We Have to Fear is Josh Marshall's Fear Itself

Nota Bene: Given the sensitive nature of the subject, I want to reiterate my blog's disclaimer that this is a personal blog and not to be associated with my employer or imply their endorsement. Thanks, JPB

Last week, TPM's top-man Josh Marshall took it upon himself to speak for "his tribe": "non-gun people." I am not so bold as to speak for anyone but myself, but I think his post merits a response.

After recounting a childhood memory in which he found himself playing with an actual gun and pointing it at a friend, Marshall explains his discomfort with guns:

More than this, I come from a culture where guns are not so much feared as alien, as I said. I don’t own one. I don’t think many people I know have one. It would scare me to have one in my home for a lot of reasons. Not least of which because I have two wonderful beyond belief little boys and accidents happen and I know that firearms in the home are most likely to kill their owners or their families. People have accidents. They get depressed. They get angry.

In the current rhetorical climate people seem not to want to say: I think guns are kind of scary and don’t want to be around them. Yes, plenty of people have them and use them safely. And I have no problem with that. But remember, handguns especially are designed to kill people. You may want to use it to threaten or deter. You may use it to kill people who should be killed (i.e., in self-defense). But handguns are designed to kill people. They’re not designed to hunt. You may use it to shoot at the range. But they’re designed to kill people quickly and efficiently.

That frightens me. I don’t want to have those in my home. I don’t particularly want to be around people who are carrying. Cops, I don’t mind. They’re trained, under an organized system and supposed to use them for a specific purpose. But do I want to have people carrying firearms out and about where I live my life — at the store, the restaurant, at my kid’s playground? No, the whole idea is alien and frankly scary. Because remember, guns are extremely efficient tools for killing people and people get weird and do stupid things. (emphases mine)

As many caveats and explanation he gives, Marshall is simply stating that his feelings about guns are based on fear, and that fear is rooted in ignorance of the 'alien.' Indeed, after corresponding with a reader who was defending the right to open carry, he writes:

But at this point I was already starting to see red. I don’t pretend that [Marshall's interlocutor] is representative. But it captured a mentality that does seem pervasive among many more determined gun rights advocates — basically that us non-gun people need to be held down as it were and made to learn that it’s okay being around people carrying loaded weapons.

Well, I don’t want to learn. That doesn’t work where I live — geographically or metaphorically. (emphases mine)

This last bit struck me particularly, because he made this post about "his tribe." This fear of people unlike him and this idea that he's 'forced to accept' the rights of others often emanates from the more reactionary Right, usually regarding open displays of homosexuality or, more directly related to fear, when uncomfortable in the presence of racial or religious minorities.*(1)

Take the Juan Williams fiasco, in which Williams said that he was frightened by people on airplanes in traditional Muslim garb. Williams' forthright prejudice was a personal bias against Muslims, not reflective of any real threat from a Muslim just because he was wearing a keffiye. (Indeed, the 9/11 hijackers, the probable source of Willams' discomfort, were wearing Western clothes during the attack.)  Marshall's fearful explanation is no different, as the vast majority of gun owners are not criminals nor will they ever pose a direct threat to others or themselves. Similarly, it is the same sort of fear that motivates the cliched white woman to clutch her purse when in the elevator with a black man. Just as there are Muslim (and other) terrorists and black (and other) criminals, there are gun owners (and others) who kill people. In our society, the individual enjoys a presumption of innocence, particularly when exercising his or her rights. That guns give people like Marshall the creeps is not enough to restrict them at the expense of others' rights. Marshall's fear is just as irrational, if more understandable on some level, but his locked-in bias against guns isn't a policy argument.

I personally think that people carrying openly for its own sake is an ostentatious, provocative, and unpersuasive political gesture, but that's their right. Brandishing a weapon is still a crime, as it should be and where the fear of a "non-gun person" is justified, but the right to carry a gun should not be generally prohibited to law-abiding citizens. If it makes Marshall feel better, any law-abiding citizen may 'open carry' in Virginia, but you probably wouldn't know it by walking around Old Town or Arlington. Just because it's legal, it doesn't mean it's common or likely to become so. I can understand Marshall's hesitation to live in a city where most everyone is carrying a gun, though I wouldn't fear it as he does, but its sheer unlikelihood makes it the most fanciful of his many listed fears and thus he need not "learn" that, despite what the other tribe is saying.

But there are plenty of legitimate reasons that someone may want to carry a weapon. Take, for example, what a facebook friend of mine recently posted (verbatim):

I lived in NYC for 10 years, without ONCE fearing for my safety. Yet, it's only when I move to the nation's capital (how ironic is that?) that I find myself truly on alert. After 2 gay men were attacked 3 blocks from my home, it finally dawned on me that I'm not in the Big Apple anymore and that perhaps, I need to learn some self-defense. But another thing dawned on me too: the conversation about guns and gun violence is mostly taking place among people who live in safe environments and can therefore feel confident in telling others they don't need a gun to defend themselves. It would really interest me to hear what less privileged people-- who live in higher crime areas-- have to say about the issue. I don't think anyone is listening to them right now.

I can't imagine she's alone in her particular fear, as brutal attacks on gays and other Queer minorities seem to be on the rise in the District.**(2) As to her revelation about privilege, Marshall virtually stipulates his own in his post.

In another context, the last time I saw my father carry, he was transporting a considerable but not huge amount of money in order to purchase a car from a neighbor whom he'd known for over 60 years. My father and his friend lived in a neighborhood in which break-ins induced more than a few homes to have bars on doors and windows, and thus he felt he—a fit man, but in his 70s at the time—could use protection in case someone decided to rob two seniors who they heard had a bit of money on them. (In my experience, many robberies are crimes of opportunity by which someone takes action after learning a piece of otherwise innocuous information.) Gun bans, such as those struck down in D.C. and Chicago, would have made criminals of my father and his friend, whom I recall was also carrying that day—or, alternatively, it would have made them more vulnerable to potential criminals who were neither persuaded nor hindered by gun bans. My father had personal reason to be wary, as many years before, and an off-duty police officer at the time, he once stopped his own mugging with his concealed service weapon.

I've never pointed a gun at anyone, but I had one at-the-ready when a friend of my then-girlfriend was a victim of domestic violence and escaped to our place. The abuser, on a previous friendly(-ish) occasion, decided to fireman-carry me up a flight of stairs on a lark. Despite being six feet tall and weighing over 200 lbs., I was upside-down and half up the stairs before I knew what was going on. I would be no match for him in a fistfight, and any non-firearm weapon would require close contact, which would leave me vulnerable to being overpowered. Furthermore, it was very likely he knew where she was. Fortunately, I never had to use that gun, but we slept more soundly that night knowing we had an effective defensive deterrent in case we needed it.

When you think about it, a considerable amount of gall is needed to deny the right of self-defense to others just because it makes you feel uncomfortable. I grant that perhaps Marshall was just speaking his mind and not actually pushing back against the right to carry, but the Left's push for legislation similarly relies on fear and their own notions of propriety. I'm not asking, let alone 'holding down,' anyone to enthusiastically accept gun rights. But Marshall and others should understand that a relative feeling of safety without a weapon is far from universal. Good for him that the idea of personally defending himself or his family against attack is an alien concept, but that's simply not the case for everyone, even in the "good" neighborhoods in D.C..

We can debate options for the future, such as expanding gun safety training to anyone who seeks to carry firearms publicly or various restrictions on time and place for carrying, but prejudicial fear of the presence of a loaded gun, however palpable to some, does not remotely approach the threshold appropriate to deny a responsible, law-abiding citizen his or her most fundamental right to self-defense.

I speak for no one but myself, but I understand the sometimes-imminent necessity of firearms for people that may not have the luxury of waiting for a 911 response. There are many who choose not to use firearms for self-protection, which is fine and I'm not telling them they should. But there are some who, at one time or another, feel safer carrying a weapon for self-defense, and their rights should be respected—despite the fears of Josh Marshall.

bellum medicamenti delenda est

*(1)This is not to say, at all, that gun owners are being persecuted like blacks, Muslims, or other minorities have been or currently are—it's that Marshall's remarks bear a strong resemblance to the myopic mentality that, in other contexts, sometimes feeds persecution: 'I don't want to learn in order to respect your rights.' To wit, direct comparisons to the Civil Rights Movement, Nazi Germany, and Stalinist Russia that many virulent gun-rights supporters have invoked are entirely off-base and offensive. American gun owners may have reason to be wary of potential government action, but they have no reasonable fear of oppression against them. Absolutely none. 
Furthermore, it should not be inferred that I think Marshall is a bigot. It's just that Marshall admitted his own close-mindedness about people carrying firearms and, to a "gun person," its syntactical resemblance to other forms of prejudice is unmistakable. That does not mean, however, the effect of his particular prejudice bears the same cultural weight as racial, religious, or identity prejudice—nor do I think it makes him a bad guy.

**(2) I use "Queer" as an all-encompassing term for non-heteronormative genders and identities. Though in context it should be obvious, I wanted to make clear since I'm a straight guy loosely  right of center.

How Mother Jones makes my case against the assault weapons ban

Nota Bene: Given the sensitive nature of the subject, I want to reiterate my blog's disclaimer that this is a personal blog and not to be associated with my employer or imply their endorsement. Thanks, JPB

As we anticipate the coming fight over whether or not Congress should reinstitute the nationwide Assault Weapons Ban, I'd like to thank Mother Jones for making my case for me: no.

Now, in recent months—well before the tragedy at Newtown—a few folks at MoJo had been reporting on mass shootings and their recent frequency. They started collecting data on the numerous shootings over the past 30 years or so and recently put it all in a very convenient spreadsheet. If you click on the “weapon categories” tab, it breaks down the number and types of weapons used in each attack. What I found interesting is that assault weapons, the floated focus of the President's gun proposal, are used in a minority of the mass shootings. In addition, there were nearly as many used in mass casualty events during the 10 years of the last assault weapons ban (13) as there were in the 12 years previous (14). Since the expiration of the AWB in 2004, there have been 8 assault weapons used in mass shootings.

So, what we have is national legislation aimed at 35 weapons that were used in 25 instances over 31 years in a nation that contains approximately 300 million guns. What's more, the last time this ban went into effect, it failed to stop the acquisition and use of over a third of all assault weapons used in mass shootings since 1982. This legislation is likely to be wholly impotent to stop mass violence—the catalyst for this legislation.

In no other arena of public policy, save perhaps drug policy, would such inefficacy be so proudly touted as meaningful. And perhaps most frustrating, there is going to be so much self-righteous ink spilled all over this absolutely worthless legislation that, even if passed, will have no meaningful effect on gun violence. What a miserable waste of time and energy is on the immediate horizon. 

Welcome to D.C.'s latest dog and pony show.

bellum medicamenti delenda est

Aaron Swartz And Our Broken Justice System

I didn't know Aaron Swartz, and I have no idea whether his legal troubles contributed to his decision to kill himself Friday. But I do know his federal prosecution for downloading copyrighted information from JSTOR, the online database of social science articles, was overzealous and out of proportion for the alleged offense he committed. Indeed, even JSTOR itself was not supportive of the federal government's actions against Swartz.

For some context, I turn to Swartz's friend and one-time lawyer, Harvard Law professor Lawrence Lessig:

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed. (emphasis in original)

I would think most of us who deal with academic articles and journals for a living think of the services like JSTOR and Lexis-Nexis as quasi-necessary gatekeepers to information we can get on our computers that save us a trip to the local law library. (Indeed, I have a much higher respect for Swartz's similar actions against PACER, a service that charges $0.10 per digital page viewed of court—i.e., public—documents that have no protection of copyright or intellectual property claims. The DOJ opened an investigation but then dropped the case.) But I don't think any of us who may have shared a file against the terms of service should be prosecuted for essentially doing what Swartz did, albeit on a much larger scale.

The United States Attorneys office increased Swartz's original four felony charges to thirteen this past September. Before the increase, Swartz was already facing a potential $1m fine and 35 years in prison for taking the gates off of academic articles. Even if we decide that we want these things to be policed, a 35-50 year prison sentence for temporarily opening a backdoor to information academic navel gazing is patently absurd.

But while many are outraged at the actions of the U.S. Attorney in the wake of Swartz's death, it should be said that over-prosecutions are standard operating procedure for U.S. Attorneys offices across the country. As I've documented before, U.S. Attorneys—and Assistant U.S. Attorneys—have a very wide latitude in whom they prosecute for what offense. Even when a directive from Washington says, for example, "Don't go after medical marijuana dispensaries that are in compliance with state laws," U.S. Attorneys ramp-up efforts and prosecutions. Just this past week, Aaron Sandusky was sentenced to 10 years in federal prison for compliance with state law.

Being in the U.S. Attorney's office is often a stepping stone professionally. On one hand, an "accomplished" USA/AUSA can walk into a partnership at a Big Law firm, a giant payday which may be a professional end point in itself. On the other, some USAs/AUSAs have higher goals, such as federal judgeships or political office. Former Massachusetts governor William Weld made a name for himself zealously prosecuting white collar crime as a U.S. Attorney, and former mayor of New York City and one-time presidential candidate Rudy Guiliani made his bones taking down organized crime as U.S. Attorney in the Southern District of New York. (In that district alone, former AUSAs include, inter alia, two former Supreme Court justices, a governor of New York, one prominent Congressman, a former FBI director, and a former U.S. Attorney General.) If you're an ambitious young lawyer, the U.S. Attorneys Office is the place for you.

Behind any high profile federal case, there is a USA or AUSA standing to gain professional notoriety for it. The Martha Stewart insider trading investigation made headlines, but it turns out her initial "crime" was nothing, so she was actually prosecuted for making false statements to investigators. (That charge, too, was weaksauce.) Nevertheless, the man who prosecuted Stewart became the number two man at the DOJ and, for a time, Acting U.S. Attorney General. His name has also been bandied about for a possible SCOTUS nod. After all, at the end of the day, he got a conviction—that the underlying issue wasn't a crime is, to the DOJ, beside the point.

This is not to say it's all about headlines. Less ambitious USAs go for lower hanging fruit, like arrowhead collectors:

Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.

In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities "notified me to get a lawyer and a damn good one," Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn't require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit. Faced with that reality, the two men, who didn't find arrowheads that day, pleaded guilty to a misdemeanor and got a year's probation and a $1,500 penalty each. "We kind of wonder why it got took to the level that it did," says Mr. Anderson, 68 years old.

Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. "Folks do need to pay attention to where they are," she said.

The U.S. Attorneys offices prosecute whomever they want, for whatever they want, and there is no shortage of laws—and potential laws—with which they can do it. Mr. Swartz may have done wrong by JSTOR, and perhaps he even deserved to pay a fine for his misdeeds, but a two year federal investigation and the threat of putting a young man in prison for the rest of his life was a despicable and wasteful effort by the federal government. Unchecked and vindictive prosecutions ruin lives, and those who are responsible for them should not be rewarded with political office.

We need federal attorneys, and we need them to have a certain latitude in what cases they do, and do not, pursue. But the Department of Justice should rein in its prosecutors and police their activities more closely. Directives from Washington should discourage unjust prosecutions, promote prudence, and tolerate—if not encourage—discretion. And, unlike the current system, these directives should have teeth. Disregarded memos are not emblematic of functioning government. Nor should win totals and headlines be the measure of a United States Attorney.

bellum medicamenti delenda est

PS: Those interested in learning more about rampant overcriminalization should look here and here. I also highly recommend Harvey Silverglate's book "Three Felonies A Day: How the Feds Target the Innocent."