Category Archives: Courts

Misusing the Judicial System

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Here’s another cynical decision to bypass the legislative branch of our republican government design, this time by DoJ. Given the behavior of the Obama administration, though, this attitude is unsurprising.

A Federal judge in a New York drug case has ruled that Apple cannot be forced by the government to help crack a cell phone held by prosecutors and claimed by those prosecutors to have critical, if encrypted, information.

The judge wrote, in part,

How best to balance those interests [between privacy and security] is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive.

Indeed. That balance, where to draw the line, and how is a political decision, to be determined solely by us citizens through our elected representatives in Congress. Political decisions cannot be reached by judges; their role is strictly limited by our Constitution to determining the constitutionality of a law and if constitutional to applying it as written. Judges can not, may not, adjust a law to suit the government’s wishes.

Nevertheless, Justice will stay within the judicial system. A carefully unnamed (at least by the AP, whose article is at the link above) insisted on this:

We are disappointed in the Magistrate’s ruling and plan to ask the District Judge to review the matter in the coming days…. This phone may contain evidence that will assist us in an active criminal investigation and we will continue to use the judicial system in our attempt to obtain it.

We will continue to use the judicial system…. DoJ will continue deliberately to bypass Congress. DoJ will continue to seek to impose its own political will on us.

Criteria for Serving as Supreme Court Justice

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Here are President Barack Obama’s (D) criteria for his nominee to replace Justice Antonin Scalia.

…judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand….

So far, so good. But.

…a judge who knows that “justice is not about abstract legal theory, not some footnote in a dusty casebook.”

And

It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times.

In other words, Obama still is looking to emphasize empathy over law. He wants the superior wisdom of the wise Latina. He wants the Constitution creatively interpreted and updated. He wants a Justice who agrees with Justice Ruth Bader Ginsburg that the Constitution is alterable because it lives through judicial rulings. He wants a Justice who agrees with Chief Justice John Roberts that enacted law is accessible to wholesale rewriting in order to arrive at something then worthy of application.

He does not want a Justice who recognizes that the Constitution lives through Article V and that Constitutional amendments and statutes and their changes are political rulings accessible only to We the People and our elected representatives.

He does not want a Justice who will adhere to his oath of office, which requires the Justice to defend and uphold the Constitution rather than to change it, an oath that also requires the Justice to understand and apply only the text of the Constitution and of enacted law, as they are written.

I agree with some, including Obama now, that the Senate has an obligation to consider his nominee(s), even in the last year of his term—a time frame Obama and his fellow Democrats have said should be exempt from Supreme Court nominee consideration. But the Senate has no obligation to rubberstamp Obama’s nominee, and any nominee who meets these criteria is unfit to serve as any sort of judge, much less a Supreme Court Justice.

Full stop.

Government Arrogance Should Disqualify It

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…in its case trying to force Apple to disable encryption on its iPhones.

Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this Court’s Order of February 16, 2016, Apple has responded by publicly repudiating that Order…Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which has been found by this Court to be warranted for an important investigation.

Never mind that under free American jurisprudence, Apple is allowed to appeal the lower court’s order to a higher court and to seek relief from complying—irreversibly, mind you—with the lower court’s order until Apple’s appeals are adjudicated. No: Apple disobeyed the high and mighty and must be punished for its impertinence.

Never mind that Apple is rightfully concerned with the sanctity of its customers’ privacy and with the ability of Americans generally to be free of the prying eyes of government. Apple disagrees with the awesome personages of FBI agents, and so it cannot possibly be behaving honestly.

DoJ’s lawyers are projecting their own failings.

Where Apple designed its software and that design interferes with the execution of search warrants, where it manufactured and sold a phone used by an ISIL-inspired terrorist, where it owns and licensed the software used to further the criminal enterprise, where it retains exclusive control over the source code necessary to modify and install the software, and where that very software now must be used to enable the search ordered by the warrant, compulsion of Apple is permissible under New York Telephone Co.

This is plainly, dishonestly specious. Apple designed its software and…manufactured and sold a phone used by…millions of American citizens, where it owns and licensed the software used to further the private affairs of American citizens…. It is plain from the careful construction of the government’s argument that it intends to expand it to pry into all of our private affairs whenever it takes a notion to.

…the Order will facilitate only the FBI’s efforts to search the phone; it does not require Apple to conduct the search or access any content on the phone. Nor is compliance with the Order a threat to other users of Apple products. Apple may maintain custody of the software, destroy it after its purpose under the Order has been served, refuse to disseminate it outside of Apple, and make clear to the world that it does not apply to other devices or users without lawful court orders….

This is deliberately disingenuous. No one is arguing that Apple is being required to conduct the government’s search. Of course, compliance with the order is a threat to other users of Apple products: the encryption, once broken or a way once found to bypass entry controls, is permanently and everywhere defeated. The FBI’s IT personnel know this. So do the government’s NSA personnel. Neither can Apple make clear to the world that it does not apply to other devices or users without those personnel making such statements being guilty of lying. Breaking an encryption algorithm or producing a way past its entry controls permanently and everywhere destroys the security of that algorithm. Without lawful court orders is just as disingenuous, as the second quote above demonstrates.

Apple is not above the law in that regard….

[M]arketing or general policy concerns are not legally cognizable objections to the Order…. This Court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company—complying with a lawful court order—could be obviated because that company prefers to market itself as providing privacy protections….

Neither is the government above the law, and these government lawyers know full well that Apple is engaging in purely legal, solely legal, behavior in appealing the court’s order. That this is inconvenient to the government’s lawyers is their problem. Furthermore, here is the government’s lawyers repeating their reprehensible, not to say unethical, claims that because Apple is so impertinent as to dispute with them, Apple cannot possibly be acting entirely honorably and entirely out of valid concerns for Americans’ privacy—especially when that privacy is at risk of so blatantly arrogant and overreaching a government as this one is presenting itself to be.

The government’s case should be dismissed in its entirety and with prejudice over this arrogance.

Voter Identification

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North Carolina’s Voter ID law is before the Federal Middle District of North Carolina with closing arguments just completed. The beef centers on the NAACP’s complaint (joined by the Obama administration) that voter identification is racist. Of course. What disagrees with the Left must be racist.

North Carolina’s law requires a prospective voter to have one of six forms of photographic identification, reduces the number of days of early voting, eliminates same day registration, and allows voters to cast provisional ballots if they say (not show) that they cannot meet the requirements (if a voter meets the requirements within a generous time frame after the voting, his provisional ballot becomes official).

The NAACP and the Obama DoJ think this is too onerous, and it disproportionately affects minorities.

This, though, is simply the racism of low expectations; it says the minorities are inherently less capable than other groups who do routinely meet these requirements.

Six forms of photo ID: driver license, driver license or non-operator identification, passport, tribal enrollment card, VA ID card, US military ID card. If a voter can’t get a photo ID, he has alternatives:

Provide their date of birth and last four digits of their Social Security number, or present their current voter registration card or a copy of an acceptable document bearing their name and address. (Acceptable documents include a current utility bill, bank statement, government check, paycheck, or other government-issued document.)

Anyone who says minorities are unable to satisfy those alternatives is simply insulting that minority—and doing it on the basis of race. Of course, there will be an occasional exception who truly cannot, but these isolated occurrences do not invalidate the requirement, they simply fall into a special handling category.

Reduced early voting days: there’s no requirement to have any early voting days at all; this is nothing more than a courtesy to reduce the need for absentee ballot handling. There’s an advantage to the voter, too, to reducing the number of days for early voting: it allows the voter more time to collect information about the candidates—a late-breaking announcement of Democratic Party Presidential candidate Hillary Clinton’s criminal indictment, for instance, or of a fifth filing for bankruptcy by a company owned by Republican Party Presidential candidate Donald Trump.

No same day registration: this is no impediment at all; it works to the voter’s advantage, especially for the voter who has not been able to get a photo ID. Aside from reducing the lines at a polling place by not having to process same day registrations, it gives both the voter and the state more time to process the information the voter provides in order to cast a provisional ballot.

The NAACP and the DoJ are making a bogus beef. There are few things more central to our freedom than the sanctity of an American’s vote, and keeping that vote from being diluted or effectively canceled by an ineligible voter is central to protecting that vote. Photo IDs—proving that the prospective voter is who he says he is—is central to that centrality.

The courts have had a good track record in those cases selected by me for commentary at reaching proper decisions. Maybe this court also will reach a proper decision. An American’s vote certainly demands it.

More Disingenuousness in Government

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Mens rea is a criminal law concept that says in order to commit a crime, a man must have intended to commit the crime; he must have had a “guilty mind.” Lack of this guilty mind doesn’t mean the man didn’t do anything wrong; he may well have, and a trial and a jury can make that determination—it would be civil wrong, for which he still would be held accountable on that jury deliberation. He just didn’t commit a crime.

In addition to the current move in the Senate to reform sentencing and jail terms, some Senators want to clarify the specifics of mens rea in criminal law.

The House Judiciary Committee last year passed a bill on mens rea…reform that would create a default standard for criminal intent in instances when no standard exists. Republican Senator Orrin Hatch and House Judiciary Chairman Bob Goodlatte would like to see it pass along with sentencing reform.

However.

Both Senator Chuck Grassley (R, IA) and President Barack Obama (D) disagree with mens rea reform and for largely the same reasons, and they’re moving to block this reform.

Grassley is blocking it because

…strengthening the requirements for criminal intent would make it harder to convict corporations than under the current amorphous state of the law.

Obama wants to block it because

…a default standard of criminal intent would make it harder to prosecute companies for regulatory violations.

This is a cynical reading of Government’s role in trials. The purpose of bringing charges and having trials isn’t so prosecutors can get convictions and look good in the shower or otherwise have something to show for their taxpayer-funded paychecks. The purpose of standards of guilt or innocence in criminal law—or civil law, to stretch for a time the definitions of guilt and innocence—is not to stack the deck against the defendant.

The purpose of these things is to provide justice for the people wronged and for the people accused.

Full stop.