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Posts from the ‘THE HLPR BLOG: Notice and Comment’ Category

May 22

When journalists refuse to name their sources

Posted 11 hours ago by Jonathan Peters

Follow me @jonathanwpeters on Twitter.

James Risen, the Pulitzer Prize-winning journalist for the New York Times, won’t reveal his sources. He’s at the center of the federal criminal prosecution of Jeffrey Alexander Sterling, indicted in 2010 for, among other things, the unauthorized disclosure of national defense information.

Risen is the author of the 2006 book State of War: The Secret History of the CIA and the Bush Administration, and he’s written a number of articles for the New York Times about the CIA and the intelligence community. The book and articles reported on a series of illegal or potentially illegal actions taken by President George W. Bush.

Here’s the background story, the CliffsNotes version. The U.S. Department of Justice (DOJ) subpoenaed Risen in 2008 to testify in the Sterling case. Specifically, the DOJ wanted to show that Sterling was one of Risen’s sources for Chapter 9 of State of War. It reported on a U.S. intelligence operation that might have helped Iran, inadvertently, to develop a nuclear weapons program. Read more

May 20

On the [broken] record: it’s time to ratify the CRC

Posted 3 days ago by Hudson Kingston

Anyone who’s taken a few international human rights classes knows what’s wrong with the U.S. Senate. That’s because students are told again and again that the U.S. is the only country, besides Somalia,* that has not ratified the Convention on the Rights of the Child (CRC). The human rights professor is quick to point out: “and Somalia has an excuse, since it didn’t have a functional government to ratify a treaty.” “The United States government played an active role in the drafting of the Convention. It commented on nearly all of the articles, and proposed the original text of seven of them. Three of these come directly from the United States Constitution and were proposed by the administration of President Ronald Reagan,” and yet we failed to ratify it (quoted text and more info at Wikipedia). Read more

May 18

Fairness in the Workplace

Posted 5 days ago by Anne King

A recent paper by Ellen Berry, Steve Hoffman, Laura Beth Nielsen (Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation) is well worth a read for anyone sympathetic to the challenges employment discrimination plaintiffs face in securing justice in court.  The authors interviewed numerous plaintiffs and defendants’ representatives to gain a sense of whether the parties view employment discrimination as fair.  It’s an unusual approach to assessing fairness in our justice system, and one that sheds important light on the differences between plaintiffs’ and defendants’ conceptions of fairness.  Read more

May 16

Va. House of Delegates Reject Reason, Solidify Place in History of Homophobia

Posted 7 days ago by Najah Farley

Yesterday, my adopted state of Virginia solidified its place in the history of homophobia with the House of Delegates decision to deny a judgeship to Tracy Thorne-Begland, an openly gay Deputy Commonwealth’s Attorney from Richmond, VA. In the wake of the North Carolina’s vote on Amendment One and President Obama’s interview with Robin Roberts, it appears that many on the right in Virginia have decided to once again be recorded on the wrong side of history. Thorne-Begland’s nomination was approved by Committees in the Senate and the House. The vote then went to the House of Delegates, where 33 Delegates voted for Thorne-Begland’s nomination and 31 voted against it, with 10 abstentions. The 31 votes against the nomination were case by Republican’s, despite the fact that Thorne-Begland had the support of Governor Bob McDonnell and Republican Delegate Manoli Loupassi. Read more

Apr 27

1 Comment

So your tweets are no different from bank records, huh?

Posted 26 days ago by Jonathan Peters

Follow me @jonathanwpeters on Twitter.

Your tweets are no different from bank records, a New York judge ruled Monday.  Prosecutors had subpoenaed an Occupy protestor’s tweets after he was arrested in the fall during a Brooklyn Bridge protest.  The judge was ruling on the protestor’s motion to quash the subpoena, which sought “user information, including email address,” and three months of tweets from the protestor’s Twitter feed. As Adam Martin wrote in The Atlantic:

 Judge Matthew Sciarrino Jr. wrote that there was no precedent in New York for an order to quash a subpoena to a “third-party online social networking service seeking to obtain the defendant’s user information and postings.” But he wrote that “an analogy may be drawn to the bank record cases where courts have consistently held that an individual has no right to challenge a subpoena issued against the third-party bank.” Sciarrino ruled that [the protestor] couldn’t quash the subpoena, but he didn’t necessarily rule that the tweets or other information would be admissible as evidence.

The judge added that prosecutors proved that the tweets might be relevant to the case against the protestor, calling into question his “anticipated defense” that police officers led protesters onto the bridge before arresting them.  The judge also said that ”Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his.”  (The license is non-exclusive.)  For its part, Twitter had notified the protestor of the subpoena and had refused to comply with it while the protestor prepared his motion to quash.

I’m troubled by the judge’s reasoning. Read more

Apr 27

States’ Rights . . . to Do What, Exactly?

Posted 26 days ago by Mark Wilson

So we’ve got a federal health care law, the federal government arguing for exclusive federal authority in immigration, and statutes that allow for federal prosecution of basically any crime if that crime involved using the mail or transmitting anything over a wire.

Whither federalism?

2012 is a very different place from 1789, where there were no phones, no lights, no motor cars, not a single luxury! Of necessity, a person had the most interaction with his or her local government, and perhaps the state government. But the national government? Unless you lived on the mid-Atlantic coast, Washington, D.C. was a far-off place. Read more

Apr 26

Death Sentence Overturned Due to Racial Bias

Posted 27 days ago by Billy Corriher

Last week, Marcus Robinson was on death row. Now, he has been given a chance at life. His death sentence was overturned because the judge found that black jurors were systematically excluded in his trial. Judge Gregory Weeks issued an order overturning the sentence under North Carolina’s Racial Justice Act, which gives death row inmates the right to challenge racial discrimination.  Republicans in the state legislature recently tried to repeal the law, only to face a veto from the governor. When it was passed, prosecutors assailed the law as a back door repeal of the death penalty.  After reading Judge Weeks’ order, I think they may be right.

Read more

Apr 25

Framing Infrastructure Investment

Posted 28 days ago by Tom Watts

Elizabeth Warren has, during her Senate campaign, become known as a remarkable communicator.* Last year, one of her speeches went viral for being so clear, so crisp, and so effective an expression of basic progressive values that it had popular appeal immediately. Many on the left have been struggling for a way to articulate the need for investment in education and infrastructure, and Professor Warren, in about a minute, did as well as anyone has in a long time. Read more

Apr 20

Troubling Questions Remain in the Aftermath of Mehanna’s Conviction

Posted 33 days ago by Najah Farley

In the wake of Tarek Mehanna’s conviction on April 12, 2012, I think that many progressive attorneys must have considerable questions about prosecutions for aiding and abetting terrorism and freedom of speech. Mehanna was convicted of terrorism charges and sentenced to 17 ½ years in prison. Based on the prosecution’s evidence, Mehanna went to Yemen on a training trip and when he returned translated Al Qaeda promotional material and posted videos glorifying suicide bombings and violence. These actions amounted to “material support” for terrorists, according to prosecutors.

A number of civil liberties groups, including the American Civil Liberties Union, have decried the decision. The Boston Globe reported that Carol Rose, the executive director of the ACLU of Massachusetts stated that the case showed that there is a “Muslim exception to the First Amendment.” Mehanna’s sentencing statement was chilling in its indictment of the United States government, and its complicity in numerous killings in predominantly Muslim countries. It also spoke of being forced to choose between being a government informant and facing prosecution. Mehanna chose “the hard way,” as he explains.

What does it mean that translating materials now counts as “material support for terrorism”? Although the concept is not novel, it is clear that this is a new interpretation, it could have far-reaching effects, as the definition of “material support” affects asylum, issues of charitable contributions and technology related issues as well. If translation of materials that are objectionable can lead to prosecution for material support for terrorism, what other arenas possibly constitute terrorism? What other groups are possibly under scrutiny for domestic terrorism? Will their members also be subject to possible prosecution under this rubric? Only time will tell how far the Government will go in arguing this definition and how much more far-reaching the implications will be.

Apr 20

Will the Handcuffing of a Kindergartner Bring Greater Scrutiny of the School to Prison Pipeline?

Posted 33 days ago by Anne King

When police handcuffed Salecia Johnson, a Georgia kindergartner, at her school this week, the incident sparked outrage nationwide.  Criticism has focused on both school personnel — who called the police when the six-year old had a tantrum at school — and the local police — who defended their actions by claiming that department policy requires handcuffing of anyone taken into custody.

Unsurprisingly, Salecia’s family has said that the experience was very traumatic for the six-year-old girl.    But perhaps the incident will bring greater attention — and scrutiny — to the problem of the school to prison pipeline.  The “pipeline” refers loosely to the phenomenon of school policies and practices that establish a police or police-like presence in educational settings, rely on law enforcement for school discipline, saddle youth with criminal records for conduct that occurred at school, and, generally speaking, create a strong connection between the school system and the criminal justice system.

Much attention has focused on the pipeline problem for older students, especially disciplinary alternative programs and the police/security presence at high schools.  (I covered a few examples of legal scholarship on the school to prison pipeline in a recent post at this blog.)  Indeed, a 2011 study by Pediatrics found that 30 percent of young adults surveyed reported being arrested by the age of 23.  (The survey didn’t include minor traffic offenses.)   This was a significant increase from the findings of a similar survey in the 1960’s, and observers suggest the increase is connected to the rise of no tolerance policies in schools.

What happened to Salecia Johnson is particularly shocking because of her young age and the severity of the police conduct.  But it will be important for advocates to emphasize that her story isn’t anomalous, or even unusual; instead, it’s part of a much broader phenomenon that has reached systemic proportions.

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