Personal Post...

My last couple of webcam images sum things up around here. I don't usually make personal posts. The Grey Area really does attempt to focus on real world issues. But then again, who knows what this gripe could address.

For some reason I feel useless. I passed the bar, so I get to be a licensed attorney, but I can't find a job. This means I get an extended vacation where I sit around and look for jobs, hoping someone will decide to pay me to practice law. Lamenting about my dwindling job prospects is useless in its own right, though. Yet I still can't help feeling this sinking sense of despair, as though the situation will only become more bleak over time. I can't stand this feeling of failing worth. This is the first time I have ever been unemployed and not involved heavily in education. It makes me realize that, at my core, I am a work-a-holic. I can come to terms with that, but when the walls of my apartment begin to feel as though they are closing in on me I know I need to get out of here. It just seems like everything is building up around me and there is nothing I can do to alleviate the pressure.

To some extent, do we all feel like this? Are all sitting around wondering what will happen in two weeks when a staggeringly small amount of people file into the polls to punch a ballot, press a button, or pull a lever. It's as though the political cacophony is building and there is nothing the people can do about it. Unfortunately, this appears to be the nature of our republican (lowercase "r") democracy. At the very least, we get a say every 365 to 730 days.

What do you get...

When you combine bad lawyering with irresponsible acts of legislation? Most familiar with recent political events would say the Military Commissions Act. What is even more insidious is the gall of those who would defend this action as the right thing for the country. One person in particular who uses the justification of the greater good in favor of a unitarian presidency is a law professor and former ranking member of the U.S. Justice Department named John Yoo. Mr. Yoo's perspective is documented in a new column published by the Wall Street Journal. Marty Lederman and Brian Tamanaha from Balkinization do an excellent job of deconstructing Mr. Yoo's perspective. Each bring an interesting opinion as to the purpose of Mr. Yoo's words his column. However, it continues to baffle me as to why people have chosen to target the judiciary as the scapegoat in the games of politics. I think a large part of the problem is the power the judiciary seems to wield over the common man, and rhetoric that politicians can use to color the record of judges who won't respond because of their reserved role in the American political scheme. Judges are easy targets and hard decisions. I find it interesting that Mr. Yoo targets the Supreme Court and their decision in Hamdan especially considering the decision was not the egregious violation of constitutional law and history Mr. Yoo seems to think and how Mr. Lederman explains.

Liberty, No More...

This afternoon, the President signed the detainee bill, also known as the Military Commissions Act, into law. This is the law creating a considerable amount of controversy because of the damage it does to American Democracy and liberty. Slate has an interesting assessment of the situation that seems to be an accurate perception of how we got here but not truely why. The why and how of it, though, are very important, as is what and whether.

The why and how of the Military Comissions Act is simple. The President will say that the why is because the Supreme Court determined his original plan for military tribunals violated the Constitution, leaving him with no definite way to deal with the several thousand inhabitants of Guantanamo. In reality, the law forgives acts of torture that could be construed under Common Article III of the Geneva Convention as war crimes from federal prosecution. The President disclosed the existence of rendition prisons (the secret CIA prisons in Europe), and the use of questionable interrogation tactics. If these interrogation tactics amount to torture, then the President and any policy-making member of executive leadership who permitted such acts are guilty of war crimes and subject to felony prosecution under the War Crimes Act. For those keeping score, if the President has committed a felony, then he is subject to impeachment by Congress and removal from office. So, the why is to save the collective political carreers of those who permitted members of the military and C.I.A. to use torture techniques for interrogation.

The how of this law's creation is even simpler. The Republican President rallied the Republican members of Congress before a midterm election that threatens the continued maintinance of a Republican majority in Congress under the premise that constituents want a government that is hard on terrorism. Should the people want a government that protects them from acts of international agression? Yes. Should that law also violate and suspend basic rights in the process? Most reasonable citizens would say no.

The what really comes down to the effect of this law. The President thinks it sends a clear message that the U.S. is tough on terrorism. However, it also sends the message that the President is tough on liberty, restricting free speech and political discourse by possibly placing "political dissidents" in the category of unlawful enemy combatants. Moreover, when one is labeled an enemy combatant, the government can make them disapear into secret detention with no right of due process. So much for liberty and the guarantee process that would otherwise prevent such an injustice. Together, these provisions allow the government to detain a CITIZEN indefinitely without being subject to criminal prosecution by a court established under the Constitution. The law allows the government a right that was never envisioned by the founders, or any other reasonable constituent. Rather, it legitimates a witch hunt sanctioned by Congress, like McCarthyism on steroids.

The whether deals with the constitutionality of the law. The Navy lawyer who represented Hamdan and won at the Supreme Court already raises his doubts regarding whether the law will pass constitutional muster. I am inclined to agree with this analysis. First, Congress may only suspend habeas corpus when the U.S. is at war. There has been no formal declaration of war in the current conflict. The thought that the Authorization for Use of Miliatary Force would support suspending the great writ is perposterous because how tenuous the link is between authorizing military action and waging a war though they seem historically indistinguishable. Alternatively, the law gives the President the power to interpret international law and determine what forms of interrogation amount to torture. This is the most absurd and most pervasive provision of the law. Congress wants to reign in the President so he doesn't violate the Geneva Convention, so they turn around and give him the power to determine, for himself, whether what he is doing violates the law. It's just illogical. Furthermore, the Courts are the only arm of the government with the power to interpret the law. No matter how quixotic the President may seem to think this form of government organization is, his oath binds him to the obligation to uphold the Constitution, and limits his ability to interpret binding law domestic or otherwise. Simply put, Congress lacks the power to pass the law, and the President lacks the power to enforce it.

In the long run, this law presents a very real danger to liberty in America. Given what it takes away, there is no reason to support a Republican led Congress in November. To be clear, I am not supporting every Democrat because there are a host of sound third party alternatives, but I am certainly not supporting anyone who voted for passing this law.

Vice versus Freedom

A recent addendum to a port security bill has over politicized a debate raging for the last 80 years. Since prohibition in 1920s and 1930s, the long standing debate in criminal law is whether to legislate against vices. Then, it was alcohol, now it is becoming on-line gambling. Many states already have licensing restrictions on gambling establishments, but this new legislation attempts to control the rising scourge of on-line gambling by restricting the legality of the sites in the United States, and now by preventing banks from being able to make transactions to on-line gambling sites outside of the country. The Washington Times has an interesting commentary on attempts by the government to criminalize vices. This is nothing new. Since the 1980s, the government has targeted drug use, and indirectly targeted alcohol consumption, tobacco usage, and gambling. The question becomes whether government should be in the business of legislating vices.

The criminal law typically aims to restrict behavior that would harm others. In a utilitarian sense, the criminal law should only restrict behavior that impacts others or society in a manner counter productive to liberty. In a libertarian sense, provided someone who gambles doesn't detrimentally effect another, the vice shouldn't matter. If anything, this legislation is counterproductive to liberty since it restricts the use of the Internet. Moreover, it strikes harder at the heart of liberty by being an addendum to a bill that no legislator would vote against, a port security bill. This raises questions regarding the adequacy of congressional representation. Essentially, this kind of law is unnecessary and demonstrates that Congress is doing little to benefit the people.

The Rise in Libel

Lawyerly Disclaimer: This post makes an attempt to explain some aspects of civil common law, and may not be entirely correct in its interpretation. Moreover, this post is merely an attempt at being informative, and does not try to counsel in any way.

ArsTechnica is running an interesting story about the increase in defamation suits against bloggers. There are two kinds of defamation: libel, which is defamation in written form; and slander, which is defamatory language that is spoken. Under civil law, defamation is a cause of action for statements in public about someone that damages his or her reputation. A person defames another by purposefully making a statement that is false about that person. The standard by which a defendant acts depends on the "social status" of the plaintiff.

This applies in two ways. The first is against a regular citizen. The second is against a so-called public figure. With regular citizens, a defendant is liable for a false statement made either negligently or recklessly with malice. Malice operates as an intent to harm when the defendant knew or should have known of the falsity of the statement. Alternatively, against a public figure, a defamatory statement must be malicious.

I know what you are thinking, this has to run afoul of the First Amendment. In reality, there are consequences for speaking in a manner that causes harm. However, opinion does not constitute defamation, nor does the truth.