Liar Liar Pants on Fire

Michael Jackson's ranch manager conceded on Tuesday that he lied when he told police that the singer never slept with children. Jackson Defense Witness Admits Lying to Police [Reuters.com]. He also testified that Jackson had a collection of bondage dolls, after first denying that he had ever seen Jackson with "adult materials." And this was a defense witness! Reuters reported that:

Lawyers can't always control their own witnesses on cross-examination, but this is stupidity at its worst. Calling as a defense witness a person who lied to the police about the central witness in the case is really inexcusable. Of course, this may be all that Tom Meserau and his team have to work with. Not much.

 Posted by glenn at 07:34 PM | Comments (0)

The Rules of War In Occupation?

The Department of Defense is prosecuting a Marine Lieutenant, Ilario Pantano, for murder arising out of the shooting death, at an Iraq checkpoint, of two suspected "insurgents." Allegedly, Pantano ordered other troops to remove the suspects' handcuffs and look away, and then shot the pair in the back, vandalized their vehicle and hung a sign over their corpses bearing a Marine slogan: "No better friend, no worse enemy."

Pantano protests that it's impossible to differentiate between innocent civilians and potential terrorists in the environment of "post-war" Iraq. The problem, here, hoewver, is that both sides are at least partially right. As the 1968 Mi Lai scandal in Vietnam shows, a civilized society must have rules of behavior even in warfare. But the situation in Iraq is poised precariously between war and police-state security. More than 1,700 of our troops have been killed, the majority in car bombs and other "IED" attacks, after "major combat operations" ended in May 2003. How in hell are these young men supposed to know who the bad guys are? Isn't this just second-guessing combat decisions made in the fog of war? Genocide is one thing, but in the aftermath of Abu Ghraib, this prosecution strikes me as one making a scapegoat of a solitary solider in order to offer a patina of legitimacy to the atrocious inhumanity of what's really going on over there.

America decided long ago that we could not be the "world's policemen." Now the miltary is doing just that in Iraq. The "rules of engagement" need to be changed, fundamentally, so the troops can defend themselves and do their jobs without being blown up by rag-heads whose idealogy is to kill Westerners, not matter why, just because they are not Muslims. As long as America remains an occupying power in Iraq -- which is what we are in reality -- this problem will not go away by itself. Even worse, Pantano gave up a lucrative career as a New York investment banker to enlist in the Marines to defend this country. He deserves better thanks than a trumped-up murder prosecution.

 Posted by glenn at 12:30 PM | Comments (0)

Fooling the World

The Michael Jackson child abuse trial in California has been somewhat surreal from the beginning, but it's taken on a whole new aura of weirdness recently, The mother of the boy in question -- who starred in the infamous video documentary where Jacko protested how "normal" and "loving" it is to share one's bed with a child -- was called as a prosecution witness to corroborate her son's allegations. Tom Meserau, Jackon's long-haired (and very cool) defense attorney, came after her like a pit buill, trying to establish that the family had concocted the entire story to extort money from the music superstar. Accuser's Mom: Jackson "Managed to Fool the World" [NYDailyNews.com].

But the confrontation failed miserably. We can't see it on television, so here's the media summary, related to the claim that Jackson imprisoned the family at his Neverland Ranch:

Way to go, Tom! You violated the first rule of cross-examination by asking an open-ended question (one should ONLY ask leading questions on cross) and got burned, bad, as a result. Maybe that's because your client is a lying pervert.

 Posted by glenn at 06:46 PM | Comments (0)

Courage and Judicial Activitsm

This is Judge Stanley Birch's stirring separate opinion in the decision of the U.S. Court of Appeals for the 11th Circuit (Atlanta) to reject the appeal of Terry Schiavo's parents under the special statute Congress passed last Monday giving federal courts jurisdiction over that single case.

And if you think this comes from a liberal jurist, you're way wrong. Birch is from rural Georgia, was an Army lieutenant in Viet Nam from 1970-72 and was nominated to the federal bench by by George H.W. Bush on March 22, 1990. That's a conservative bio if I ever heard one. And as Ed Brayton from Dispatches from the Culture Wars cogently points out--

We need more judges like Stanley Birch, judges who have the courage to tell it like it is and not base decisions on political expediency.

 Posted by glenn at 12:14 PM | Comments (0)

Johnnie, We Hardly Knew 'Ye

Johnnie Cochran, O.J. Simpson's lead trial lawyer in the infamous L.A./Brentwood murder trial, died quietly last night of an inoperable brain tumor. Yes, he was gaudy, liked fancy suits, bling and publicity, and talked a lot (actually, an awful lot), but his closing statement in 1995 for O.J. was one of the best performances -- and by far the best televised closing argument -- by a trial lawyer ever. "If it doesn't fit, you must acquit." Wow! Listen for yourself.

Now O.J. is all alone in his quest to find the "real killers." It's so sad (NOT)! What's refreshing, however, is that -- despite his star-studded clientelle and amazingly high income -- Cochran always took on free legal cases for the disdvantaged, saying that his most rewarding efforts were in representing what he called the "No-J's." That's class and integrity, even if he did get a murderer off with flim-flam rhetoric and snake oil.

 Posted by glenn at 06:30 PM | Comments (0)

Technology at the Supreme Court

Today was a very big day for technology at the U.S. Supreme Court, with two hugely significant cases being argued. The first, Grockster v. MGM Studios, arises from the movie and recording industries' efforts to impose contributory copyright infringement liability on post-Napster providers of P2P file sharing software. Supreme Court Takes Hard Look at P2P [CNET News.com]. The second, BrandX v. FCC, arises from the FCC's efforts to clear the way for cable modem broadband service without requiring cable companies to share their facilities with ISPs. Supreme Court Asks Why Cable Broadband Lacks Regulation [ITWorld.com].

It's always hard to predict where the Court will come down from its oral argument questions. But these remarks from Justices Breyer, Scalia and Souter in Grockster are quite revealing.

There's a sense to which both the cable and entertainment industries are overreaching. I've got friends and colleagues on both sides of each of these issues, but biting off more than one can legitimately chew is a very bad strategy, since courts (especialy the Supreme Court) are pretty good at sorting out litgants who overstate or overplay their hands.

 Posted by glenn at 05:30 PM | Comments (0)

Over the Edge

I am skiing in Telluride, Colorado this week, so little time for posting. It should be noted, however, that once I got out of Washington, D.C., Congress in fact passed a statute on the Terry Schiavo case. So, obviously my mere presence was what alone was blocking this revolting exercise of pure partisan political power!

 Posted by glenn at 09:55 AM | Comments (0)

Mercy

Thank God, it's over. The judge presiding over the Terry Schiavo case ruled in her husband's favor early Friday afternoon and rejected a request from U.S. House of Representatives attorneys to delay the removal, which he had previously ordered to take place at 1 p.m. EST. Brain-Damaged Woman's Feeding Tube Removed [ABCNews.com]. Michael Schiavo was at his wife's side when the tube was disconnected, making good on his pledge to her years ago that neither would let the other live on as a vegetable.

Love conquers politics. Mercy triumphs. And Terry gets to pass on peacefully to whatever lies beyond life. A happy ending to a tragically sad story about the right to die and political hypocrisy.

 Posted by glenn at 09:11 PM | Comments (0)

Death With Dignity

The U.S. Congress this evening made a frantic, last-ditch effort to keep Terri Schiavo alive, passing measures that call for the federal courts to prevent the removal of feeding tubes from the brain-damaged woman in Florida. President George W. Bush applauded the move, saying the courts should rule "in favor of life.''

Well, let's look at the real facts. Sen. Rick Santorum of Pennsylvania, a rabid anti-abortion advocate, introduced a bill (S.539) dubbed the "Incapacitated Persons Legal Protection Act of 2005." Supposedly under the 14th amendment to the Constitution, which provides that`No State . . . shall deprive any person of life . . . without due process of law," the bill would deem any person (husband, wife, doctor, etc.) who is "authorized or directed by court order to withdraw or withhold food, fluids, or medical treatment" to be holding an incapacitated person in "custody" for purposes of federal court habeas corpus proceedings. In layman's terms, this means that the constitutional protection against government custodial confinement -- which is used to challenge state criminal convictions as unconstitutional -- would now be extended to anyone who obtains a state court order allowing a loved one to die. Private citizens, not the state, are now being commanded to give up their personal autonomy by the fiction that their spouses (legal guardian in all other situations) become the government because a court ratifies one's right to die.

Santorum's bill reasons that:

Bullshit. In Terry Schiavo's case, where that poor woman has been in a persistent coma, without consciousness, for 15 years, the bill would take away from those who know her best the power to let her die and allow any third-party -- not limited to her parents, but anyone -- to use the courts to contest her right to die. This is not about due process, it's about manufacturing a federal "right" out of thin air, just like Santorum piously claims the Supreme Court did in Roe v. Wade on abortion. The hypocrisy is simply astonishing. As Schiavo's husband said on Nightline, will the government now force cancer patients to take chemo against their wishes? The policy and legal logic is the same, but the result is the Big Brother government that Republicans traditionally despise. Now they're all for it, wanting to overturn 19 Florida court decisions, all of which confirmed that Terry Schiavo is brain dead, can never have any senses again, and should be allowed to be removed from artificial life support.

Bill Clinton famously declared that "the era of big government is over" in 1995. Not true. Now that the Republicans control both houses of Congress and the White House, after lambasting Clinton, they're moving government ever more deeply into state, local and intensely personal affairs. Santorum, Dubya and the congressional Repubicans are the George Orwells of 2005, only 21 years after "1984."

Update: When the House could not pass a bill acceptable to the Senate last night, it came up with a new strategy. To subpoena Terry Schiavo's husband to testify before Congress in Washington, D.C. so that he would have to leave Florida when the order allowing disconnection of life support goes into effect this afternoon. Shameful.

 Posted by glenn at 11:05 PM | Comments (2)

You Can't Hide

As predicted here, this afternoon a federal jury in New York, on its eighth day of deliberations, convicted Bernie Ebbers on the criminal charges that he helped mastermind an $11 billion accounting fraud at WorldCom, now known as MCI. Ex-WorldCom CEO Ebbers Found Guilty on All Counts [CNNMoney.com]. The conviction completes a staggering fall for Ebbers, who took a small long-distance company in Mississippi and merged with or acquired ever-larger companies, earning him accolades and the nickname Telecom Cowboy. "He was WorldCom, and WorldCom was Ebbers," the prosecutor told jurors. "He built the company. He ran it. Of course he directed this fraud."

Six senior WorldCom executives were indicted for fraud and the company was forced to file for bankruptcy protection in 2002. But Bernie was the only one of those executives to plead not guilty. He gambled again, and this time lost big. Way big. Up to 85 years in prison. And it could not have happened to a more contemptible human being.

A charismatic businessman who went from Wall Street superstar to untouchable almost overnight, Ebbers turned a folksy demeanor and by-the-bootstraps biography into central exhibits in his unsuccessful defense against the charge that he inflated WorldCom's books when his personal fortune ($400 million in WorldCom stock used as collateral for extravagant loans) was tanking during the dot.com and telecom bust of 2002. It is refreshing to realize that juries usually see through smokscreen defenses and get things right. Have a nice stay in Leavenworth, Bernie!!

 Posted by glenn at 01:19 PM | Comments (0)

Pajamas In Court

I am away due to a death in the family, but even so had time to watch the riveting drama of this morning's fiaso in California when Michael Jackson failed to show up for court on the day his teenage accuser was due to testify to the sexual abuse perpetrated by the rock star. The presiding California state court judge revoked bail and issued a bench warrant for Jackson's arrest, but stayed it for 60 minutes (until 9:35 PST), during which MSNBC was live with an "arrest countdown clock." Jackson eventually arrived, 10 minutes after the deadline, wearing pajamas, slippers, a T-shirt and looking like he'd been drugged. As Dan Abrams latrer described:

The excuse was (once again) a medical one, this time that Jacko had back pain and went to the emergency room. As if someone who makes tens of millions of dollars a year doesn't have a personal physician to prescribe medication for back pain!! But unlike last time, when the judge told the jury Jackson was "really sick" with the flu, this time he just informed them that trial was delayed due to Jackson's medical condition and urged the jury not to infer Jackson's guilt from his behavior. A very clever -- and completely legally correct -- instruction, which the jury will and should promptly ignore. Because getting (or pretending to be) sick on the day a criminal defendant is to confront the main witness against him is too incriminating -- like fleeing a crime scene is evidence of consciousness of guilt -- to be ignored. Jacko is his own worst enemy. His own frail psyche is now the chief evidence that he is actually the pedophile Peter Pana wannabe the prosecution claims he has been for years.

Now the only really sad part is that, at the end of the day, the judge did not, as he had threatened and was fully empowered to do, put Jackson in the slammer for the duration of the trial. That may be a smart judicial move, in order to demonstrate no bias against the defendant, but it is not very satisfying. Put this wierdo in a cell for months and when he does take the stand, he'll crack like a nut in public!!

 Posted by glenn at 02:48 PM | Comments (0)

The Law Isn't the Answer

Everyone remembers being in high school and rebelling against authority, including the facists who run such institutions with their hall passes and dance chaperones. Apparently, today things are even more restrictive, including breathalyzer tests administered routinely during the school day. Sobriety Tests Are Becoming Part of the School Day [NYTimes.com].

What I find most interesting, however, is not that this stuff is occurring -- that's just an update of the battles waged between teenagers and teachers since James Dean in the 1950s -- but that communities are themselves rebelling against the exercise of such intrusive school authority. The courts routinely uphold almost all steps schools invoke against students, regardless of the privacy implications, on the ground that minors do not enjoy the same First Amendment rights as adults and that schools act in loco parentis (in the place of the parents). But as the Times reports, "such policies easily survive legal challenges, but often crumple under community opposition."

That's a good example of why the law is not always (indeed, rarely) the answer to social problems. It's also an illustration that even parents, of which I am now one, can sometimes live up to the ideal of "Do as I Do," not just "Do as I Say."

 Posted by glenn at 09:17 AM | Comments (0)

Just a Dumb 'Ol Country Boy

Bernie Ebbers' defense to criminal charges of accounting fraud that brought down WorldCom -- the multi-billion dollar telecom conglomerate he built with a string of hundreds of complex financial mergers -- is that he didn't know anything about acounting. Prosecutor: Pressure "Corrupted" Ebbers [USAToday.com]. "I know what I don't know," Bernie testified, claiming he relied entirely on his CFO and chief accuser, Scott Sullivan, to manage financial matters.

That's like the late Senator Sam Ervin, who chaired the Watergate hearings, famously saying in his folksy way that he was just a "simple ol' country lawyer." You don't get to become CEO of a Fortune 50 company in America without understanding -- and playing a key role -- in corporate finance. Chief Executive Officers live and die (literally) by "hitting the numbers" Wall Street expects. I suspect the jury will see through Ebbers' charade and send him to the slammer for a long time. At least, I hope they will. And it's heartening that 74% of respondents to a CNBC poll agree with me.

 Posted by glenn at 09:29 AM | Comments (0)

You've Come a Long Way

The story was about a significant constitutional case concerning private property rights and eminent domain before the U.S. Supreme Court. But buried in the text was the observation that with the absence of Chief Justice Rehnquist due to illness and another Justice (Stevens) missing due to a travel snafu, that "created an opportunity for Justice Sandra Day O'Connor, the most senior remaining justice, to become the first woman to preside over an oral argument at the court."

The significance of this moment was its relative insignificance. Meaning that 20 some years after she became the first woman on the Supreme Court, O'Connor's assumption of the presiding role at the Court was not treated as anything extraordinary. That illustrates the extraordinary social changes wrought by the women's rights movement, which began with Betty Friedan and blossomed in the late 1970s. When I was in law school (1978-81), it was the first time that women made up nearly 50% of the student body. I remember celebrating Myra Bradwell Day, named after the first woman who was admitted to the bar as an American lawyer (after unsuccessfully appealing her initial denial to the U.S. Supreme Court) in 1870. Now it's no big deal to have female lawyers, women judges and even women presiding at the Supreme Court. The same Supreme Court, mind you, that wrote about Bradwell, "The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many occupations of civil life....The paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother. This is the law of the Creator."

Holy revolution, Batman! John Riggins, of Washgington Redskins fame, once drunkenly quipped to O'Connor "Loosen up, Sandy baby." I think it's more appropriate, now, to say -- like the old cigarette ad (or the newer Fatboy Slim CD) -- "Sandy, you've come a long way, baby."

 Posted by glenn at 08:11 PM | Comments (0)

He's Really Sick

Michael Jackson "Really Was Sick" Judge Says [Reuters.com]. It's a good thing juries decide these cases, because Jacko's "flu-like symptoms" hardly justify a week-long delay in jury selection in his child abuse trial. It's also probably a really stupid defense tactic, as it allowed the jury pool to watch ABC's "Michael Jackson's Secret World" last Thursday night, with all its pedophelia overtones and weird behaviors, filmed and otherwise, about the pop music legend. And remember, the child by his side at that 2002 interview -- where Jackson unabashedly spoke about sharing his bed with young boys -- is the same boy who is now the centerpiece of this criminal trial.

Maybe the judge got the tense wrong. It's not that Jackson was really sick last week, it's that he is really sick.

 Posted by glenn at 02:09 PM | Comments (0)

Accounting Fluff

So the trial of Bernie Ebbers, former WorldCom CEO, for fraud is beginnning, and the chief witness against him is the company's former CFO. Scott Sullivan testified this week that Ebbers was told quarterly that in order to "make the numbers" demanded by Wall Street, the green eyeshade accountants had to add "fluff" to WorldCom's revenues and understate expenses. Ebbers Told of 'Accounting Fluff' [USAToday.com].

This is very damning evidence and (as in Martha Stewart) more than enough to convict the slimebag Ebbers. WorldCom went down in an $11 billion accounting scandal because someone booked expenses as assets, thus artifically inflating revenues and understating costs in order to maintain false EPS reports. Bernie either knew about it or directed it -- matters not. He's going down, and it could not happen to a more rotten guy.

 Posted by glenn at 12:32 PM | Comments (0)

SCO's Follies

Most people other than the SlashDot and open source crowds haven't been following the case, but a small company called SCO Group has sued IBM, claiming that the latter violated copyright rules in developing the Unix (and hence Linux) operating systems. I have always regarded this as a simple strike suit, designed to terrorize the open source movement with threat of copyright judgments -- a legal strategy funded by Microsoft -- without much substantive merit. Well, the courts appear to agree. Judge Slams SCO's Lack of Evidence Against IBM [ZDNet.com]

That's judicial-speak for "you lying bastards, get out of my court"!!

 Posted by glenn at 10:52 AM | Comments (0)

This is Torture?

Like many Americans, I was shocked and revolted by last Spring's revelations that detainees at the US-run prison in Abu Ghraib, Iraq were subjected to attacks by dogs, naked human pyramids and other degradations. But this takes things too far, the wrong way. The Washington Post, in a front-page article titled Detainees Accuse Female Interrogators, reported yesterday that some detainees at Guantanamo Bay, Cuba were "abused" because "women rubbed their bodies against the men, wore skimpy clothes in front of them, made sexually explicit remarks and touched them provocatively." That's not torture and it's not anything like the sort of brutality outlawed by the Geneva Convention (which the Administration refuses to apply to Iraq).

Now we all know that sexual values and mores in Muslim countries are more restrictive than in America and most Western democracies. But still, using sex to entice men to talk is the oldest game in the book of espionage. And any man, Muslim or not, who would complain that some women rubbed their bodies provocatively while wearing skimpy clothing is just out of his mind. (We can leave aside the 72 virgins that Muslim martyrs are supposed to receive in heaven -- what are they for if not sex?) I mean, this is something for which most men would LOVE to be on the receiving end. Reminds me more of the way in which the Army won the Iraq war in the first three weeks. They used bullhorns to announce loudly in contested areas that Iraqi men had small penises and could not satisfy their women. So the stupid Iraqi soildiers were so angry they stormed out of their foxholes and got machine-gunned to death instantly.

They can't have it both ways. Either Muslim men are defiantly proud of their sexual prowess, in which case provocative body rubbing by sexy girls should be no big deal, or they are sexually deficient, in which case the provocation here was as offensive as Ginger Lynn accosting a bunch of gay men. Whatever, but if this is torture, send me to Iraq!!

 Posted by glenn at 12:24 PM | Comments (0)

Lawyer Jokes

I am a lawyer and like to tell lawyer jokes. In fact, I've been known to take off-the-record breaks during depositions to regale opponents with new ones.

Now it turns out that, despite the PC-ification of America (I mean, no more Polack jokes, right?), lawyer jokes are still protected speech. Man Arrested for Lawyer Jokes at Courthouse Gets Last Laugh [law.com]. So what do lawyers use for contraception? Answer: their personalities.

 Posted by glenn at 12:03 PM | Comments (0)

Little Boys

Michael Jackson says "Please keep an open mind and let me have my day in court. I deserve a fair trial like every other American citizen. I will be acquitted and vindicated when the truth is told," he added. Jackson Protests Leaks, Predicts Acquittal [USAToday.com].

That's what Scott Peterson claimed, too. And this time there's no fishing alibi, because the gloved one from Neverland admitted on national television that he likes to have little boys sleep in his bed. Sadly, the next time we see this M.J. it will be when they handcuff him after his conviction for child molestation.

 Posted by glenn at 03:08 PM

Privacy of Consenting Adults

Supreme Court Justice Scalia warned of it in 2003 year when the court ruled sodomy laws unconstitutional, and now it has happened. A federal judge in Western Pennsylavnia has decided that the government has no right to outlaw the private consumption of obscene materials in the privacy of one's home. Handed down last week, but only highlighted on Nightline last evening, this decision could be an historic change in the status of "morality" legislation in the United States.

That is, as the court held, "the federal obscenity statutes burden an individual's fundamental right to possess, read, observe and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials."

Ah, I am sure those red-state social conservatives are just pining away for the days of "Reefer Madness." Well, we've come a long way baby.

 Posted by glenn at 06:43 PM | Comments (0)

Rooney's Ass

Fox is refusing to air a commercial on the SuperBowl in which octagenarian Mickey Rooney -- in an ad for an over-the-counter cold remedy -- briefly shows his ass while in a sauna. Fox says that its "standards and development department" concluded that the commercial should be "deemed inappropriate for broadcast television." But that euphamism does nothing to disguise the simple fact that Fox is afraid of the FCC's unprincipled "indecency" campaign that started a year ago with Janet Jackson's "nipplegate" affair. That a major national broadcast television network cannot distinguish a breast from buttocks and titilation from advertisement is a sad testament to the terribly coercive media self-censorship resulting from the lack of any predictability to the FCC's politically motivated enforcement policies.

 Posted by glenn at 06:12 PM | Comments (0)

Gay Marriage Without Dissent

Today the U.S. Supreme Court -- without any dissent, even from the most conservative justices -- refused to accept review of the Massachusetts decision requiring state officials there to recognize same-sex marriage. Although Supreme Court decisions in such certiorari proceedings are not precedential, it seems to me that this pretty much puts a nail into the coffin about whether the Court thinks the equal protection argument advanced in favor of gay marriage is invalid.

Just as the Court reached out in 2000 to decide Bush v. Gore, because it wanted to end the Florida recount, it could have done so with this case even though Massachusetts decided on state consitutional grounds. As the Court recognized in 2000:

That same logic would obviously work to federalize same-sex marriage as a constitutional issue. But the Supremes said no, meaning there are still (believe it or not) some political questions in which the Court wants to avoid meddling. Glory be, a real conservative decision from a Supreme Court that is in actuality as activist as they come.

 Posted by glenn at 03:21 PM | Comments (0)

Bad Moon Rising

This is about as serious a critique as one can make of the mess Michael Powell has created at the FCC over indecency. Michael Powell Exposed! The FCC Chairman Has No Clothes [washingtonpost.com].

Holy, cow, Tom Shales, this is really frank stuff for the Washington Post. Deserved, but direct. Way to go.

 Posted by glenn at 05:21 PM | Comments (0)

I Wasn't Kidding

Yesterday I warned that the FCC's outrageously political "indecency" campaign would result in self-censorship by broadcast networks afraid of a mercurial and unpredictable regulatory response. Well, today that fear became a reality. ABC is airing Stephen Speilberg's Oscar-winning film, Saving Private Ryan, but nearly 65 local affilates -- including in such metropolitan areas as Boston -- have refused to broadcast the film, citing the FCC. The network has shown the movie on Veterans' Day for two years, without incident, but now it's being replaced by re-runs of The Andy Griffith Show.

So the lesson is that to comply with the FCC's views on "community standards," we're now retreating to the social standards of the 1950s. Booyah, what a step backwards. It's not even "Father Knows Best," but "Washington Knows Best." Veterans groups, Sen. John McCain and even the parental organizations that complained about Janet Jackson's "wardrobe malfunction" are up in arms, but once unleashed the scourge of censorship is damn hard to stop. Way to go, Mike!@!

 Posted by glenn at 11:46 PM | Comments (0)

Indecency and the Consitution

A good sound bite from your faithful author. Viacom to Take "Hard Line" Over FCC Fines [Chicago Tribune]. As I've blogged before, the blatantly political use of indecency regulation only highlights the First Amendment risks -- censorship and all that -- which are inherent in an ad hoc approach to whether risque content passers muster on the airwaves. The courts, including the Supreme Court, will be hard pressed to justify this outrageously vague and selective enforcement, let alone the entire "scarcity" doctrine under which network TV is regulated but satellite and cable programming are not. Red Lion may finally have met its match. (If I post George Carlin's "Seven Dirty Words" here, will Mike Powell come after me?)

 Posted by glenn at 10:36 PM | Comments (1)

Whimpering To a Close

The headline says it all. Microsoft Ends Decade of U.S. Antitrust Litigation [Reuters.com]. With the last deadline for an appeal to the Supreme Court now over, Microsoft has settled with its opponents and only the European Union case is left. The real question, though, is whether Redmond has changed its stripes? Otherwise the past will be mere prologue.

 Posted by glenn at 12:29 PM | Comments (0)

Long Live the Digital Divide

This has been a long-standing pet peeve of mine about telecom regulation. Home Tech Study Reveals "Digital Divide," But Not Necessarily The One You'd Think It Is [MediaDailyNews].

So, we know that the government does not subsidize VCRs, yet in 20 years they have penetrated to 95% of the marketplace. Every welfare mom (and this I know from persoal experience representing formerly homeless families) has one. On the other hand, America has subsidized POTS (regular telephone service) to low-income and rural users for 70 years and we're still at 94% penetration -- and falling. Now we find that the poor are actually earlier adopters of some communications technologies, like cell phones, without any subsidies. So I say it's time to abandon the "universal service" shibboleth and let the market work. If it's good enough for VCRs, it's good enough for telephones and computers, too.

 Posted by glenn at 01:02 PM | Comments (0)

Shock Jocks and Free Speech

"When Howard Stern is the nation's leading defender of the First Amendment, you know something has gone horribly wrong." That's what Brian Chin says about the FCC's indecency rules in arguing that the agency has outlived his usefulness. Buzzworthy: Fadeout for FCC? [seattlepi.com].

Well, he's right and he's wrong. What is horribly wrong is that the FCC's indecency campaign is a transparently political effort to legislate morality on a steadily declining segment -- broadcasting -- of the media market. Hence Stern's move to the satellite-radio provider Sirius to escape government censorhip. But what is perfectly right is that it has always been folks like Stern -- and Lenny Bruce and many others before him -- who pushed the envelope of political speech.

Civil liberties in America exist to protect everyone, but it is only a few bold people among us, sometimes vulgar, who actually have the nerve to test the limits of the First Amendment. America has relied on the Howard Sterns of this world for more than two centuries to maintain the principles of free speech. Like him or not, his battle with the FCC is a classic paradigm of civil liberties. Nothing wrong with that at all. It's precisely what the Founding Fathers had in mind.

 Posted by glenn at 06:04 PM | Comments (0)

Microsoft and DRM

In a move to prevent Microsoft from using its dominance in PC operating systems to control the burgeoning field of digital rights management (DRM), European regulators are considering blocking the company's acquisition of an influential DRM patent holder. EU Wants Windows Cleaned of DRM [Wired News]. The European Commission has launched an in-depth investigation into Microsoft's and Time Warner's acquisition of the digital rights management company ContentGuard.

The issue here in reality is not DRM, but rather the anticompetitive use of patents. Proprietary technologies and standards are OK, indeed beneficial -- witness VHS v. Beta, etc. -- and even firms with market power are permitted to benefit from the protections accorded by patent law. On the other hand, where a monopolist uses patent acquisition to foreclose entry, especially in "innovation" markets, antitrusters are naturally and properly worried.

Having said that, this is no different from Microsoft's historic patterns. The company has never invented anything, rather buys up technologies (like DOS, Internet Explorer, PowerPoint, etc.) and excels -- no pun intended -- at commercializing new ideas and integrating them into its dominant Windows operating system. Microsoft's Windows Media Player and proprietary A/V format are still losing in the battle with Real, QuickTIme and the protected AAC format used by Apple's iTunes Music Store. So instead of building a better mousetrap, Redmond buys one. (Whether it's better or not of course remains to be seen.) Par for the course.

 Posted by glenn at 06:28 PM | Comments (0)

Legal Morons

This is my kind of law. Calling Lawyer a "Moron" Not Defamatory, Pa. Judge Rules [Law.com]. Judge Gene Cohen of a court of common pleas -- the lowest state trial court in Phildelphia -- said that when one party "blew his stack and called [the defendant] names . . . this conduct alone is legally undifferentiated from any common outburst of anger directed by one person at another person." Amen. It's one of my favorite phrases and now I know I can call any of the lawyers I oppose morons without slandering them. Not that the idiots (TFIs, which smart readers can decipher) would have the cohones to sue me, anyway!

 Posted by glenn at 05:29 PM | Comments (0)

Non-Area Area Codes

An interesting article in the "metro" section of the New York Times observes that "Cellular phones, changing governmental regulations and new Internet technology have torn area codes from geography, allowing people to have phone numbers with area codes distant from where they live. Though not new, the trend has kicked up a pitched debate among a colorful collection of technological pundits, telephone historians and Web preachers who specialize in the topic."

All of this started in a case I handled in 1995, in which New York and the FCC authorized the 917 area code -- known formally as a Numberiing Plan Area or "NPA" -- to be assigned on a non-geographic basis, so as to include cell phones and pay phones. That of course was before the days of ubiquitous wireless phones and unlimited roaming, which as the Times points out have made even geographic area codes non-geographic.

Now, get this. Some sociologists call this "a deeply confusing development." Come on! When the Bell System moved from geographic exchange or central office codes (the first three numerals of a 7-digit telephone numer), like "Murray Hill 5-0154," to direct dialing like "679-0154" in the early 1950s, many folks saw that as an unsettling change. Poignant and nostalgic, perhaps, but disturbing, no. Telephone numbers and geography have not been synonymous for years. Harkening back to the old days is nice in sepia-toned movies and memoirs, but not in today's fast-paced, interconnected world.

 Posted by glenn at 09:41 AM | Comments (0)

Costly Nipple

It's bullshit, of course, but today the FCC levied a fine on CBS and its owned-and-operated stations of $550,000 for the Janet Jackson "nipplegate" affair during the Super Bowl. TV Stations Fined for Janet Jackson Breast Flash [Reuters.com]. (You can see the not-very-indecent photo here.) So if one breast is worth half a million, how much would a Full Monty of Miss Janet cost? With her hot new bod, it's most likely very expensive -- but well worth the price.

 Posted by glenn at 01:59 PM | Comments (0)

Guns Don't Kill Elections, People Do

Flip-flopping twice in seven days, democratic presidential candidate John Kerry this week proudly held up a deer-hunting rifle in Western Pennsylvania and than lit into President Bush for not extending the 1994 federal ban on assault weapons. Kerry Says al Qaeda Benefits from Bush's Gun Ban Stance [SFGate.com].

This is way over the top. It was box cutters, you fool!! Automatic rilfes have little if anything to do with terrorism and nothing at all to do wth al Qaeda's attacks on 9/11, in Madrid and the like. Vulnerability of domestic police forces to drug-gang violence, yes. But the jihadists use suicide bombers, IEDs and the like. It's the sure sign of a dying campaign when its leader -- who ignores the real political and international defects of Bush's terorism policies -- is reduced to making such a transparently idiotic and pandering charge. No wonder that Bush is trouncing Kerrry 56-29 in polls for "taking a clear stand on the issues."

 Posted by glenn at 09:24 AM | Comments (0)

Sleeping Prosecutors

Judge Gerald E. Rosen of the U.S. District Court for the Eastern District of Michigan has reversed the conviction of two Arabs -- the first to be charged with terrorism-related offenses after 9/11 -- after the government conceded misconduct in its handling of the case. "The prosecution's understandable sense of mission and its zeal to obtain a conviction overcame not only its professional judgment, but its broader obligations to the justice system and the rule of law," wrote Rosen in his opinion in United States v. Karim Koubriti, et al.

Lest one think this was just liberal judging, the Court emphasized that 9/11 represents a "monstrous apparition of fanatical terrorism that presents to our Nation -- indeed, to the whole civilized world -- the gravest threat of the first decade of the new Millennium." And it was the government itself, concluding that exculpatory documents had been withheld intentionally from the defense (a clear constitutional violation for more than 40 years), that confessed error and moved to dismiss the indictment.

Last year, Attorney General John Ashcroft heralded the Detroit convictions as a clear message that the United States would work diligently to disrupt and dismantle terrorist "sleeper cells" at home and abroad. “Every victory in the courtroom brings us closer to our ultimate goal of victory in the war on terrorism. The Department of Justice will continue its aggressive battle in the courts to ensure the safety and security of all Americans," Achcroft crowed in June 2003. Well, it seems as if it's the Justice Department's own lawyers who were the real sleepers in this case.

 Posted by glenn at 08:06 PM | Comments (0)

Morons of Eagle County

So the local Colorado prosecutors have dropped their rape case against Kobe Bryant, saying the victim -- who has filed a civil lawsuit for damages -- does not want to testify. But the reality is these guys botched up the case from the start and then hid evidence from their forencic pathologist that the victim's injuries were inconsistent with forced sexual assault. Case Promised Only Defeat, Disgrace[MSNBC.com].

In the end, our system of justice put a rich, superstar public figure athlete under the media spotlight display for a year, forced him to spend millions of dollars in legal fees, and possibly ruined his reputation, on a case that never should have been brought in the first place. And because the criminal investigation and suit were overseen by a bunch of Keystone Cop proscutors, they ended up trashing Bryant's rights so badly that they eventually just gave up. Something's wrong with this picture.

 Posted by glenn at 12:25 PM | Comments (0)

The Buck Stops At the Top

The Bush Administration has long claimed that the embarassing and internationally harmful abuse of detainees in Iraq by the U.S. Army resulted from a few low-level and over-enthusiastic enlisted personnel. But Long Island's Newsday, hardly a bastion of liberalism, editorialized today about the Abu Ghraib prison abuse scandal, laying out the case for why the Bushies are just plain wrong.

Bush set the stage for abuse in February 2002 when he declared that the Geneva Conventions did not apply to al Qaeda prisoners and the Taliban were unlawful combatants unqualified for prisoner of war status. "When the man at the top says the rules don't apply, abusive excesses are a predictable result," says Newsday. The conclusion is unremarkable. What is striking is that, once again, no one in the White House or the Pentagon will admit to mistakes or accept responsibility.

In other cultures, government officials would have resigned immediately, perhaps even comitted hari kari. But not in the Bush Administration. No nothing, hear nothing, see nothing for these leaders. Rumsfeld even denies that there were any abuses during interrogations. The Atlanta Journal-Constitution concludes that "Rumsfeld refuses to admit it, but the horrors of Abu Ghraib lead right back to his doorstep." The guy's funny, but he's got to go.

 Posted by glenn at 08:10 PM | Comments (0)

Jacko and Probable Cause

Michael Jackson's lawyers lost their attempt to suppress evidence gathered in a search of his Neverland Ranch when the presiding judge ruled today -- based on the complaint filed by a 13-year old boy alleging sexual abuse -- that police had probable cause to believe a crime had been comitted. Judge Rules Police Had Probable Cause To Search Michael Jackson's Ranch [MTVcom].

This was a no-brainer. Yet another illustration of why some lawyers, who are content to make ridiculous arguments, give my profession such a bad public reputation. Oh, and the defense attorney was fined by the court for refusing to halt a line of cross-examination the judge ruled was irrelevant. That's both unprofessional and silly. Makes the lawyer, his client and the whole system of justice look bad. Maybe it is.

 Posted by glenn at 07:56 PM | Comments (0)

Gag the Courts

I for one am getting sick and tired of courts in this country issuing "gag orders" that prevent parties, witnesses and lawyers from talking to the press. The judge in the Kobe Bryant rape case widened his gag order yesterday to cover the victim's lawyers and colleagues of the trial lawyers. What this means is that, once again, the media will not be permitted to talk to the folks who know best what's going on in the case.

The rationale always given for these kinds of restrictions is that they are necessary to a "fair trial." Yes, trials must be fair. But if there really are people who would decide a case based on TV and media reports, then they should be kept off the jury in the first place. Every survey I have seen says that juries are extremely conscientious and almost always come up with the right result, regardless of what the media circus reports.

There's no conflict between fair trial and the First Amendment. Only between luddite judges and the First Amendment.

 Posted by glenn at 03:24 PM | Comments (0)

Gay Marriage and Judicial Jurisdiction

The question of federal court jurisdiction to decide the constitutionality of acts of Congress has always been a thorny legal and political question. One of my law professors, the famed (and late) Herbert Wechsler, pondered long over whether Congress can legitimately withdraw jurisdiction for the federal judiciary to determine constitutional questions in specific classes of cases. (He also represented the New York Times in the famous Sullivan case about First Amendment limits on libel prosecutions, participated in the Nuremberg war crimes trials after World War II, and developed the influential "neutral principles" branch of constitutional jurisprudence, to which many African-Americans and others object vehemently because Wechsler concluded that the landmark Brown v. Board of Education school desegregation decision was invalid.)

The rather esoteric legal argument is whether, having created the federal courts -- since the Constitution only commands one Supreme Court -- and vesting them with jurisdiction, there are any constitutional constraints on Congress acting the other way. Some say the equal protection clause prevents withdrawing jurisdiction over specific kinds of cases involving what the Supreme Court way back in 1938 called "discrete and insular minorities." Others take the position that Congress has plenary (total) power to decide what, if any, cases the federal courts can decide.

Now the issue of gay marriage may take this question from the realm of hypothesis to reality. Today the House of Representatives voted to remove federal court jurisdiction to decide challenges to the "Defense of Marriage Act." That legislation (28 U.S.C. 1738c) provides:

The bill passed today would disallow any federal court from deciding whether Section 1738c is constitutional. This frames the question quite clearly. Of course, it's just a cynical election-year ploy, as the Senate has rejected a consitutional amendment outlawing same-sex mariages and the House failed to pass legislation on the merits. So the House majority assumes -- probably rightly -- that withdrawing judicial jurisdiction is easier than winning on substance.

This is a lingering, but fundamental, issue about separation of powers in the U.S. that has been dormant for decades. It was also the question Prof. Wechsler posed in the final exam for his 1981 "Federal Courts and the Federal System" class at Columbia Law School. Perhaps Wechsler will finally get his "day in court." Too bad he hasn't lived to see it.

 Posted by glenn at 07:39 PM | Comments (0)

Phishing For Bandaids

Last year the U.S. Congress outlawed spam. Of course, the actual legislation was so weak, and covered only American firms, that it was doomed from the start and has done nothing to stop the torrent of unsolicited commercial email.

Now legislators want to make it a crime to engage in "phishing." This is the use of chameleon-like emails, typically made to look as if they originate from a bank, PayPal, eBay or some other financial-related institution, to entice folks to part with sensitive personally identifiable information, like passwords and account numbers. Senate Bill Targets "Phishers" [TechNews.com].

The new bill is a charade. Pfishing is fraud, which is already a civil tort and a crime under both federal and state law. Adding a specific statute ciminalizing this behavior will do nothing to stop it and will not protect consumers who are too stupid to protect themselves. It's grandstanding of the worst sort, because it won't stop the abuses one iota. And don't even get me started on the United Nations' recent declaration of a two-year "war against spam." Worse than empty words.

 Posted by glenn at 10:21 AM | Comments (0)

Can't Win 'Em All

Much as last week's judicial decision on media concentration was a great victory, today's ruling by the U.S. Court of Appeal for the D.C. Circuit -- upholding the government's 2001 antitrust settlement with Microsoft -- was a terrible loss. Microsoft Prevails in Antitrust Appeal [InternetNews.com]. Not only because I was counsel to the appellants, as "third fiddle" behind former Judges Robert Bork and Ken Starr (renowned lawyers whether one agrees with their rather extreme politics), but more importantly because the court just failed to grasp the significance of the issues it was dealing with. For instance, even though Microsoft was found to have unlawfully monopolized the PC operating system market by bundling Internet Explorer into Windows, the court ruled that a decree (i.e., a remedy) that does NOT require unbundling is adequate and in the "public interest."

This is really bad news for antitrust enforcement and utilmately for consumers. The market has moved far beyond the "browser wars" between Netscape and Microsoft that gave rise to the case in 1995, but an end result that allows a convicted monopolist to do the same things to other upstarts -- and thus squelch competition -- that it did to drive Netscape from the market is inexplicable.

 Posted by glenn at 08:01 PM | Comments (0)

Yes, We Have A Constitution

High Court Deals Blow to Bush's War on Terror [Reuters.com]. So today the Supreme Court ruled that Guantanamo Bay detainees can indeed challenge the constitutionality of their confinement, rejecting Bush Administration assertions that the Executive Branch is entitled unilaterally to lock up even suspected terrorists without legal recourse. Last December I compared one of these cases to the infamous 1944 Korematsu decision, in which the Court upheld the internment of Japanese-Americans in California concentration camps, with their property confiscated without any reasonable cause, merely because of their race, due to the "exigencies" of World War II.

Thank goodness those days are, at long last, gone. Today, the Court concluded that "it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court" just because the President says he should be detained. "[A] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens." Yes, we still have a constitution, and it works.

 Posted by glenn at 07:06 PM | Comments (0)

Media Concentration

Court Rejects Rules On Media Ownership [WashingtoPost.com]. The U.S. Court of Appeals for the Third Circuit today reversed an effort by the Bush Administration to liberalize rules allowing for increased broadcast media consolidation, including common ownership of newspapers and television stations in the same market. I was privileged to argue the appeal for Consumers Union and the Consumer Federation of America. A big win in an important case.

 Posted by glenn at 09:07 PM | Comments (0)

What's In a Name?

The Supreme Court ruled today, by a 5-4 vote, that the Constitution does not prohibit state laws making it a crime for a person to refuse to identify himself to the police, even where there is no probable cause to believe that the individual has committed or is about to commit a crime. People Must Give Police Their Names, Court Rules [WiredNews.com]. The decision reasons that police are allowed to stop people whom they have "reasonable suspicion" to conclude may have acted criminally, without a warrant -- known as a "Terry stop" for the 1968 case permitting them -- so the arrest is no greater intrusion.

But in Terry, the Court concluded that a warrant was unnecessary because individuals subject to a stop based on reasonable suspicion are "not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest." And the majority today also concluded that identity alone is not incriminating. As Justice Stevens pointed out in dissent, however, "if we accept the predicate for the Court’s holding, the statute requires nothing more than a useless invasion of privacy."

All of this goes to show just how screwed-up criminal law in the U.S. has become in the wake of 9/11. This case was about a man standing on the side of the road talking to his daughter through the open window of her pick-up truck. All he wanted was to be left alone. Now the law says the police can drive up and cart you off for doing nothing wrong, with no crime involved, just because you refuse to give your name. This is wrong. As Justice Brandies said nearly 100 years ago, the Constitution protects "the right to be left alone." At least it did until this conservative Supreme Court got through trashing privacy in favor of law enforcement.

 Posted by glenn at 08:13 PM | Comments (1)

Technology and Terrorists

As if the USA PATRIOT Act and calls for a "Patriot Act II" are not bad enough, the Justice Department again demanded today that emerging Voice Over Internet Protocol (VoIP) services -- essentially telephone calling via the Internet -- be postponed until they are made compatible with digital wiretapping by the government.

This reminds me of the political debate over gun control, except backwards. Just as "guns don't kill people, criminals do," VoIP doesn't cause terrorism, terrorists do. The government should not take out its paranoia over over the inability of the CIA to get good intelligence on Al Qaeda by restricting the development of technology. Law enforcement has been trying to hamstring the Internet since the days of the "Clipper Chip" and encryption in the Clinton Administration. They were rebuffed then and these new calls to reign-in nascent techologies until law enforcement catches up adopt the same luddite approach. It should go into the dustbin of bad ideas.

 Posted by glenn at 07:36 PM | Comments (0)

Liberals Under God

Yesterday the Supreme Court reversed a California court of appeals ruling declaring the Pledge of Allegience unconstitutional, but did so on a legal technicality ("standing") to avoid reaching the merits of the issue. The New Republic Online: Thank God. Once again, the liberals and conservatives on the Court switched, with Chief Justice Rehnquist and Justice Clarence Thomas arguing in dissent that the Court should find standing and uphold the Pledge.

One of my professors in law school used to say that standing doctrine was invoked when courts found certain politically explosive cases too much of "hot potatoes" to decide. Now it seems that standing is used when the Supreme Court cannot get a majority on a single decision and one wing of the Court -- which remains sharply divided politically -- is trying to avoid a bad result on the merits.

 Posted by glenn at 09:08 AM | Comments (0)

Legal Back Doors

The U.S. Steps Up Push Against Online Casinos by Seizing Cash [NYTimes.com]. This is just unbelievable. John Ashcroft's Justice Department has frequently been turned down in attempts to apply federal anti-gambling laws to offshore Internet casinos. So now they're seizing funds in America that those operations have used to pay for advertising, on the grounds that media companies are "aiding and abetting" gambling by accepting ads. Talk about an unconscionable, morality-driven use of the legal back door. This takes the cake.

 Posted by glenn at 11:34 AM | Comments (0)

Suicide Is Painless

A U.S. Appeals Court on Wednesday ruled that a Bush Administration directive seeking to stop Oregon doctors from helping terminally ill patients commit suicide was unlawful and unenforceable. The decision by the 9th Circuit held that Attorney General John Ashcroft overstepped his authority when he ordered Oregon doctors to ignore a state law -- the "Oregon Death with Dignity Act." both passed and then later reaffirmed by voters via referrendum -- that allowed phyisicians to prescribe lethal doses of medication to terminally ill patients who wished to die. [Reuters.com].

The specific legal question addressed was not whether physician-assisted suicide is appropriate, but rather only who decides, states or the federal government. In a switch much like 2000's Bush v. Gore case that decided the presidential election, a liberal majority relied on principles of federalism to find that medical practice is an issue on which states have the final word, while the dissenting conservative judge argued that the Attorney General and the Constitution permit federal regulation of medical practice when it involves controlled substances. (The full opinions are here.)

The dissenting judge was J. Clifford Wallace, for whom I clerked in 1981-82. He is an independent, tremendously principled and courageous jurist. But I find it ironic that Judge Wallace used decisions extending the scope of federal power to override what he and other conservatives have for years championed, namely the limited nature of federal authority vis-a-vis traditional state activities regarding health and safety (known in legal parlance as "police power"). I think he's wrong here, but I have and always will greatly respect his legal judgments even when they disagree with mine.

The one point on which I violently disagree with with Judge Wallace's dissent, however, is his claim that the majority's decision overrides the democratic process. Seems to me it's really the other way around. Ashcroft disregarded the state democratic process to issue a federal edict. When state voters affirmatively decide, twice, to allow physician-assisted suicide, what right does the federal government have to step in and change that? And even if the feds have the power, isn't it contrary to everything America stands for to have the courts permit it to do so -- particularly when there is no constitutional barrier to state law -- in the face of a democratically approved law in an area of traditional state concern?

The next battleground of this issue will be the many cases certain to arise regarding gay marriage. It will be interesting to see whether the same, ironic switch between liberals and conservatives happens here, as well. I suspect the answer will be like the case last year in which the Supreme Court, by a 6-3 vote, overturned Texas' law criminalizing homosexual sodomy. It will be treated almost as a no-brainer.

 Posted by glenn at 08:49 PM | Comments (0)

War Crimes?

From bad to worse to an unmitigated disaster goes the Iraqi prisoner abuse scandal. Newsweek now reports that "[t]he White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for 'war crimes' as a result of new and unorthodox measures used by the Bush Administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue." The memo itself strongly recommended that President Bush exempt the treatment of captured Al Qaeda and Taliban fighters from the Geneva Convention in order to avoid possible liability for dramatically more agressive interrogation techniques approved by the White House.

The memo -- and strong dissents by Secretary of State Colin Powell and his chief legal advisor, William Howard Taft IV -- are among hundreds of pages of internal Administration documents on the Geneva Convention and related issues that have been obtained by Newsweek and are reported for the first time in this week's issue. So while top White House officials publicly talked about trying Al Qaeda leaders for war crimes, the internal memos show that Administration lawyers were privately concerned that they could tried for war crimes themselves based on actions the Administration was taking, and might have to take in the future, to combat the terrorist threat.

Holy crap, this is dynamite! It blows a whole in Rumsfeld's argument that the Abu Ghraib atrocities were committed by a few individuals without sanction by the Pentagon or White House officials. And the really sad part is that the White House counsel concluded that even if the Geneva Convention was determined not to apply, America would still meet "its committment to treat the detainees humanely" consistent with "miniumum standards of treatment recognized by the nations of the world." Parading captives naked, hooded and with attack dogs nearby is hardly the stuff of "humane treatment," it seems to me.

We've got yet another new scandal, folks. If Clinton could be impeached for lying about a blow job, the same conclusion certainly would hold for Bush and an interrogation policy knowingly in violation of the Geneva Convention. Whether that will happen depends on politics, but it just might.

 Posted by glenn at 08:18 PM | Comments (0)

Full Attention

Just days after being indicted on a second set of charges for child molestation, Michael Jackson fired high-profile criminal defense attorney Mark Geragos, saying "it is imperative that I have the full attention of those who are representing me."

Well, it's also imperative that lawyers have clients who know what's going on, who don't give psychotic interviews to the press, and who don't sleep with adolescent kids in their beds. But no one can control these super celebrities. They live in another world. For this, Jacko is going to pay a real price, soon.

 Posted by glenn at 06:16 PM | Comments (0)

JPEGs and Laches

Yesterday a small computer company said that it holds a patent on the JPEG compression format used widely for Web-based images. Forgent Networks, which acquired Compression Labs in 1997, sued 31 major computer manuacturers for patent infringement, claiming they all violate a 1987 patent issued to Compression.

This is absurd. Neither Forgent nor Compression invented the JPEG image compression format. The technology (short for Joint Photographic Experts Group, the group which developed it) is in the public domain and is one of two standards for Web graphics. Having waited seven years -- and a full 17 years after the patent was issued -- before asserting any claim of infringement, it seems ludicrous that Forgent should be able to step in at the last moment to muck everything up.

Under U.S. law, the equitable doctrine of laches holds that rights can be waived if not asserted promptly. (Defined as "neglecting to do what should or could have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.") Simply put, if you "sit on your rights," you lose them. It' also possible that the Federal Trade Commission may find that Compression misled the Intenet task force that originally standardized JPEG by not revealing its patent claims, which could force open licensing as a remedy for anticompeitive patent misuse in the standards process.

But of course, it will probably turn out to be less expensive for Apple, Adobe, Dell and the other defendants to settle than to take this case to its logical conclusion. Sony has already paid $16 million in licensing fees. So little Forgent will profit handsomely from an old patent they inadvertently discovered lying around, and everyone who uses the Web will pay a little more as a result.

 Posted by glenn at 08:59 AM | Comments (0)

Shock Jocks

The post-Janet Jackson, pseudo-moralistic FCC is now fining Clear Channel Communications some $500,000 for carrying the Howard Stern show, on grounds of indecency. Clear Channel Appeases Radical Right [morons.org]. This is such crap. We're not talking even George Carlin's "Seven Dirty Words" here, which in the late 1970s was the basis on which the Supreme Court upheld indecency regulation in broadcasting, grounded in fear of exposure to children.

But today, with hundreds of cable and radio channels, kids are all hooked on Nickelodeon and all a listener has to do is use the remote to never be offended.

There's no reason today even for public airwaves to be regulated to the lowest (or highest) common demoninator of decency. If you don't like Howard Stern -- and I personally can't stand his schtick -- don't tune in!!

 Posted by glenn at 12:42 PM | Comments (0)

Rush Limbaugh and the ACLU

So Rush Limbaugh -- fighting a legal and poltical battle against Florida prosecutors investigating him for money laundering and doctor shopping in connection with his addiction to painkillers -- argues to an appellate court today that the government's seizure of his medial records violates his 4th Amendment constitutional right to privacy. And liberal groups like the American Civil Liberties Union are taking his side. (You can watch the hearing on his Web site, too.)

Thank goodness for those card-carrying ACLU pinkos when you need them, huh, Rush? Roy Black, Limbaugh's lawyer, says these are not strange bedfellows because the case is not political. Oh, but it is, it is. We've got the most prominent conservative media pundit relying on those he and his right-wing colleagues have lambasted repeatedly in the past to defend his own rights. It's entirely political; just that politics looks a little different when you are staring at a set of handcuffs and criminal prosecution. As the ACLU itself boasts, it:

Yeah, this is not a political case!! Right.

 Posted by glenn at 05:05 PM | Comments (0)

Prosecutorial Leverage Unchecked

As if it were not bad enough that United States proescutors have repeatedly tried to extend U.S. law extraterritorially to online casinos operating offshore, now it appears they are going after American businesses, like Google and Yahoo!, that sell ads to these foreign entities. Web Engines Plan to End Online Ads for Gambling [nytimes.com]. The theory is that, by accepting advertising money, the Internet search providers are "aiding and abetting" gambling.

But then how to distinguish folks who are really assisting a criminal enterprise from those who are just selling ordinary products? Should the company that sells computers, office supplies or toilet paper to offshore casinos also be deemed to "aid" allegedly unlawful gambling? When there's no rational way to draw such lines, all that is left is the naked exercise of power. The U.S. Constitution used to have something to say about that.

 Posted by glenn at 09:59 AM | Comments (0)

The Slow Grind of the Law

Reacting to Sun's $1.6 billion settlement of its antitrust lawsuit against Microsoft, some observers believe that Silicon Valley has given up trying to constraing pedatory conduct by Gates & Co. "After two decades of inflamed criticism, many here in the technology sector have come to accept the slowly acquired reality that the legal system can do little to resolve their quarrel with Microsoft," summarizes John Markoff in the New York Times. More on point is this commentary by Alan Saracevic in the San Francisco Chronicle: "Don't kid yourself. These compassionate overtures from Microsoft are signs of benevolent dictatorship. The boys up in Redmond have won the war. Now they're helping the Germans rebuild Berlin."

Mark these words. We haven't seen the end of Microsoft's antitrust battles. It took the government 50 years and three antitrust lawsuits to constrain the power of -- and finally dismantle -- the Bell System. Yes, the law moves slowly. But like the Mounties, they always get their man in the end.

 Posted by glenn at 07:03 PM | Comments (0)

P2P Lawful In Canada

According to Toronto's The Globe and Mail, a federal court up north has ruled that peer-to-peer file sharing is lawful. "The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution," concluded Justice Konrad von Finckenstein. Hey, this is a better reason than the Vietnam War to move to Canada, eh?

 Posted by glenn at 11:40 AM | Comments (0)

Seat Belts for Pets

In Santa Fe, New Mexico, local officials are contemplating passing an ordinance that would require pet owners to restrain their dogs, cats and ferrets in special pet seats or with seat belts while traveling in a moving vehicle. Most news outlets ran the story today under their "odd" or "oddly enough" banners. Screwy, whacko or insane would be a more appropriate categorization. America may have become a nation in which personal resonsibility is unfortunately excused because we are all treated as vicitims, but now we're treating pets like children. Since the U.S. already has a new federal law that makes it a crime to kill a pregnant woman's fetus, why not prosecute those who fail to put pets in seat belts as murderers, too?

 Posted by glenn at 09:45 AM | Comments (0)

Hyperbole and Antitrust Politics

Readers of this blog know that I am an antitrust lawyer and that I've worked on the United States v. Microsoft antitrust case -- for the competitive side of the software industry -- for years. Well, now we have a situation in which the European Union has accomplished something that the U.S. government failed to do in its nearly decade-long prosecution of Microsoft: it issued a meaningful punishment to the Redmond monolith. Microsoft was found to have violated the U.S. antitrust laws by bundling Internet Explorer (IE) into Windows in order to prevent competition from then-insurgent Netscape. Yet American antitrust officials squandered that judgment in favor of a sell-out settlement that allows Microsoft to continue the same practice of integrating new functions into Windows -- backed by no technical or efficiency justifications, rather only to stifle competition -- that the government's landmark case had proven was intended only to maintain the Windows PC monopoly.