Category Archives: Law

Almost underneath their robes

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Part of Sepia Mutiny’s hidden agenda (we have never published our actual mission or spoken of the Machiavellian designs that drive us) has been to develop an influential and well placed system of CIs that will help our collective Mutiny to spread in both numbers and power (but especially in power). I have taken the liberty of modifying former U.S. Attorney General Janet Reno’s formal definition of a “CI” for those of you unfamiliar with this term:

“Confidential Informant” or “CI” — any individual who provides useful and credible information to a JLEA Sepia Mutiny regarding felonious criminal interesting desi-related activities, and from whom the JLEA Sepia Mutiny expects or intends to obtain additional useful and credible information regarding such activities in the future. [Link]

Basically this means that we want to encourage SM readers to send us the “goods” or the “dirt” on happenings that we don’t yet know about. Want me to give you an example of what kind of CIs that we are seeking out? SM reader Venkat of BTD gives us a heads up about some interesting developments at the Supreme Court. Three of the incoming Supreme Court Clerks are desi:

Scalia: Hashim Mooppan (Harvard ’05/Luttigator ’05-’06)… [Link]

Ginsburg: Arun Subramanian (Columbia ’04/Jacobs ’04-’05/G. Lynch ’05-’06) [Link]

Breyer: Thiru Vignarajah (Harvard ’05/Calabresi) [Link]

These three make ideal CIs. I am reaching out to them. If you know them then forward this on. We can be very discreet. Dead drops could be arranged in random parks by a variety of means. I have had pleasant dealings with clerks from lower federal courts before. Just ask around. We know that in the coming term the Supreme Court will be dealing with many cases involving desis, or with definite importance to the desi community. These three could maybe keep us up to speed on things.

The Drudge Report broke the Monica Lewinsky scandal before major media outlets did. We want SM to break more news also. That is where we need YOU dedicated reader. Are you in a position of power or influence and are just dying to share something you know, or stick it to the man? Do you work for some government agency or powerful corporation that doesn’t appreciate you enough? We appreciate you. Think of me as your very friendly case officer. The agent Vaughn to your agent Bristow. Will some real CIs please stand up?

[Disclaimer: For the record, I am not advocating that you break any laws, at least if they get me in trouble also…or if they get me subpoenaed, because I don’t think I could last in jail very long to protect you as my source. I would really try to though…unless they put me in a cell with some guy named “Tiny” who really isn’t.]

See related posts: The “Devils” Advocates, The Court has Hindu friends, …then you can’t have our money, Orwellian logic

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Indian guys with cameras (updated)

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Our tipline has been buzzing (thanks “mg” and others) with news that Rakesh Sharma, director of the award winning “Final Solution” about the Gujarat riots, is suing the City of New York, and that the NYCLU’s got his back. Here is why:

Rakesh Sharma was filming cars emerge from under Manhattan’s Metlife building in 2005 when he was stopped, questioned, allegedly shoved, and then detained by the NYPD for shooting footage of the building. The cops were suspicious of Sharma’s motives but, after four hours, the director was released and told that he would need a permit if he wanted to do any further shooting.

When Sharma applied for a permit, however, his application was denied because he lacked the proper insurance. Now, represented by the New York Civil Liberties Union, the director (who has won multiple awards for his documentaries) has filed suit against the city’s “police restrictions on taking pictures in public.” Among those named in the suit are the city itself and the commissioner of the Mayor’s Office of Film, Theater and Broadcasting. [Link]

Why was Sharma filming cars? Well it will make sense when you know what kind of cars he was filming:

Rakesh Sharma was shooting footage for a film on New York taxi drivers in May 2005 when officers stopped him…

“It’s a sad day when the police think they can detain and mistreat someone simply for making a film on a public street in New York City,” Mr Sharma said on Tuesday.

“I co-operated with them and answered all their questions, but they treated me like a criminal. It was wrong, and I was scared and humiliated,” he said. [Link]

A blogger at Mediabistro quips:

Honestly, if the cops in New York start arresting Indian guys with cameras, they’re going to have to shut down all of Sixth Avenue. We’re officially scared.

I’m hoping that DNSI’s Valarie Kaur might leave a comment and shed some light on this for us. She has recently been filming in New York City as well. I wonder if she was similarly hassled.

Update: Both Rakesh Sharma and Valarie Kaur were kind enough to respond to this post.

You can sign the petition to protest his arrest here. Continue reading →

The art of the book review

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Superstar desi lawyer Neal Katyal, who will later this year be representing Osama Bin Laden’s former driver in a Supreme Court case, had a book review in yesterday’s Washington Post. The book he was reviewing was a new one by John Yoo titled, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. Katyal cleverly uses his book review to slam Yoo and his conservative policies, while also adding to the very relevant debate about what limits should be imposed on the powers of the Executive.

In particular, the book argues that the Constitution gives the president a much larger role in foreign affairs and military operations than the other two branches of the federal government, that the president does not need a congressional declaration of war before placing troops on the ground and that treaties ratified by the Senate have no legal impact unless Congress explicitly passes laws saying that they do.

In advancing these claims, the book is burdened by its strange attempt to mix constitutional claims grounded in the Founders’ intent in 1787 with the practicalities of living in an age of terrorism. Either one can take the position of such conservative icons as Robert Bork and Justice Antonin Scalia — that the original intentions of the Constitution’s authors bind us today and changes can only come through amendment — or hold the view of more liberal figures such as Justice Stephen Breyer that practical, functional considerations create a living Constitution that adapts as times change. Both are perfectly plausible. What isn’t credible is a theory that cherry-picks from the two to advance a particular thesis. And that’s exactly what Yoo does at times.

…In the end, the most glaring failure of the book is its one-sided attack on the courts and Congress, with no real attention paid to the failures of the executive branch. The underlying message is that the executive doesn’t need checks on its activities, but that the other branches consistently do. Yet presidents of both parties have made tremendous mistakes, and recent events have shown that claims of unchecked power can lead to massive abuse. Yoo even unwittingly refers to at least one recent miscalculation, in words that already date the book, by stating that Iraq was “potentially armed with weapons of mass destruction.”

It seems very likely that this book review also gives us a small preview of what some of Katyal’s arguments in front of the Supreme Court may be in Hamdan v Rumsfeld. I am just counting the weeks until Nina Totenberg wakes me with details of Katyal’s fight in front of the Roberts court.

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Orwellian logic

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The biggest legal news of the week was a decision yesterday by Judge Michael Luttig of the Fourth US Circuit Court of Appeals in Richmond. The Fourth is considered the most conservative of the Court of Appeals, and Luttig the most conservative of judges. He makes Roberts and Alito look liberal, which is why the President thought it would be too hard to get him confirmed to the Supreme Court. It must have thus shocked the Bush administration that he sharply rebuked their handling of the Padilla case. If you’ll recall, over three years ago the government accused American CITIZEN Jose Padilla of being a potential “dirty bomber.” He was stripped of his rights as a citizen under the U.S. Constitution and was thrown into jail as an enemy combatant based upon the secret evidence of the Administration. The assertion was that he had no rights. His lawyer, Andrew Patel, appealed his status and it was headed for the Supreme Court after a brief layover in the Fourth. At this point (over three years into the ordeal) the government changed its mind. To paraphrase the Justice Department’s logic, “let’s just change his status and charge him with other crimes so that the existing case cannot be appealed to the Supreme Court.” Not so fast, said Luttig. The Christian Science Monitor reports:

The administration’s actions create “an appearance that the government may be attempting to avoid consideration of our decision [in the Padilla case] by the Supreme Court,” writes Judge J. Michael Luttig in a 13-page order released on Wednesday.

“We believe that the issue [in Padilla’s case] is of sufficient national importance as to warrant consideration by the Supreme Court,” Judge Luttig writes.

The judge went on to criticize the government for underestimating the damage its actions were causing to public perceptions of the war on terror and the government’s credibility before the courts.

“While there could be an objective that could command such a price as all this, it is difficult to imagine what that objective might be,” Luttig writes.

The rebuke carries extra sting, analysts say, because of who delivered it. Luttig is one of the nation’s most conservative appeals court judges and was on the short list of White House favorites for each of the two recent vacancies on the Supreme Court.

It has been a real bad week for Civil Libertarians, hasn’t it? It seems that every time I turn on the television there is news of one of my Constitutional rights is being eroded. Earlier this week Newsweek asked, “why have [Americans] reacted so insipidly to yet another post-9/11 erosion of U.S. civil liberties?” This question was posed in reference to the revelation of illegal wiretaps. I point this out because these two issues are inextricably linked. A U.S. citizen who is spied upon without a warrant can then be labeled an enemy combatant and locked up without any rights, all on the word of the Bush Administration. Why then are they jonesing so bad for a Patriot Act renewal? This method is way more powerful. Continue reading →

California, here I come (updated)

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California, here I come
Right back where I started from [Link]

John Yoo, professor of law at my alma mater, UC Berkeley, became infamous last year for writing a memo justifying torture by the CIA.

As Abhi posted, the NYT just reported that Yoo also wrote a legal opinion claiming Dubya could break U.S. law and let the NSA, a Defense Department agency which intercepts and decrypts overseas sigint, spy domestically on U.S. citizens.

The NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president… That legal argument was similar to another 2002 memo authored primarily by Yoo, which outlined an extremely narrow definition of torture. That opinion, which was signed by another Justice official, was formally disavowed after it was disclosed by the Washington Post. [Link]

On one hand we’ve got Manmohan Singh’s daughter Amrit Singh fighting CIA torture and open-ended detentions in Guantánamo Bay. On the other, we’ve got Professor Yoo on the side of virtually unlimited police powers and Ass’t Attorney General Viet Dinh co-authoring large portions of the Fascist Act.

At first glance, Yoo might seem a political soldier willing to write whatever tissue-thin legal justifications his superiors order. But what if he’s sincere in his belief that torture, locking people up without charge and domestic spying by the NSA is legitimate rather than prima facia illegal and unconstitutional?

Mario Savio

I get the sense that first-gen Asian Americans tend to be socially conservative and more pro-law and order (vs. civil rights and privacy) than the mainstream. It’s the whole idea put forth by GOP recruiters that many first-gen Asian-Americans, including desis, ought to be ‘natural conservatives’ because they tend to hold traditional social views, value family and own small businesses:

Grover Norquist, a Republican anti-tax campaigner with influential friends in the White House, claims that “Indian-Americans are natural Republicans and natural conservatives.” They are on the whole well-educated and well-to-do; they respect family values, and like working for themselves. [Link]

In this case, however, it doesn’t really apply. Yoo was born in Seoul, but he grew up and went to undergrad in the U.S. What’s perhaps most symbolically striking is how involved Asian-Americans are in this administration in crafting key antiterror laws which disproportionately affect minorities. We’ve truly arrived.

Even more ironic, UC Berkeley is best known for its role in the Free Speech Movement. Now one of its most highly-placed professors is working hard to undermine those very same ideals. Mario Savio, meet John Yoo.

Update: The NYT reports Yoo’s conservatism was in fact influenced by his parents’ generation, specifically their revulsion towards North Korea’s communism. It parallels the Reagan conservatism of Cuban-Americans:

By then, Mr. Yoo already thought of himself as solidly conservative. He had grown up with anticommunist parents who left their native South Korea for Philadelphia shortly after Mr. Yoo was born in 1967, and had honed his political views while an undergraduate at Harvard. [Link]

Update 2: (thanks, Siddharth):

Yoo traces his convictions in no small part to his parents, and Ronald Reagan. His father and mother are psychiatrists who grew up in Korea during the Japanese occupation and the Korean War. They emigrated in 1967, when Yoo was 3 months old… Coming of age in an anti-communist household, Yoo said, he associated strong opposition to communist rule with the Republican Party and was himself “attracted to Reagan’s message.” [Link]

Update 3: A review of Yoo’s book in the NY Review of Books.

He was merely a mid-level attorney in the Justice Department’s Office of Legal Counsel with little supervisory authority and no power to enforce laws. Yet by all accounts, Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same– the president can do whatever the president wants…

In short, the flexibility Yoo advocates allows the administration to lock up human beings indefinitely without charges or hearings, to subject them to brutally coercive interrogation tactics, to send them to other countries with a record of doing worse, to assassinate persons it describes as the enemy without trial, and to keep the courts from interfering with all such actions. Has such flexibility actually aided the US in dealing with terrorism? In all likelihood, the policies and attitudes Yoo has advanced have made the country less secure. [Link]

Related posts: Hullo. Hullo. Who’s that clicking?, Escape from Draconia, Every little helps, Cabbie hartal in Naya York, Reappeared, Brimful of Amrit, Indian PM’s daughter says Bush personally authorized torture

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Hullo. Hullo. What’s that clicking?

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I am very paranoid when on the phone. I always listen for the little clicks and clacks. I have nothing to hide but my parents think that blogging will draw unnecessary attention to me. Perhaps they are right. I know that when I speak to Manish on the phone about some blog-related matter I should not be using the word “mutiny.” After a while though you just become complacent and let words like “mutiny” and phrases like “overthrow the establishment” drip from your mouth like honey into a cup of green tea. I’ve also been using a calling card (from what may be a shady NSA front company) to call my parents who are vacationing in India. I should think twice about what I say because the big news of the day is that the New York Times is confirming what many of us already suspected. Big Brother might be listening to your mutinous conversations. He can hear you.

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”

Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation’s legality and oversight.

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Immigration smokescreen

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Last Tuesday Wisconsin Congressman James Sensenbrenner introduced legislation on the House floor that will greatly impact the South Asian American community as well as many other immigrant populations. The legislation is up for vote on Dec. 15th. The San Jose Mercury News reports on the bill:

Sensenbrenner’s measure combines the border security bill by homeland security chairman Rep. Peter King, R-N.Y. with several other enforcement provisions. The key non-border enforcement measure is patterned after a bill by Rep. Ken Calvert, R-Calif., to require employers to verify the Social Security numbers of their employees. Such a program is now voluntary.

Sensenbrenner’s bill would give employers six years to use a federal data base to verify that all their employees are legally entitled to work here. Calvert’s bill would have applied only to new hires and phased in compliance.

Sensenbrenner’s bill also increases the penalties for employers found to hire illegal immigrants, with the minimum fine going from $250 per illegal worker to $5,000. Small business would have lower fines.

“If we do just this,” Calvert said Tuesday, “we’ll pick up about 95 percent of those who are using false documents” to get their jobs.

In reality though this bill will have the same effect as chasing a fly around the house with a baseball bat. The bill, if enacted into law, would not only punish illegal immigrants, but it would also punish almost everyone that they come into contact with (possibly even social service workers). This is pure politics. House Republicans need some issue to rally behind that appeals to their conservative base and will serve to take people’s minds off the war in Iraq. By allowing the anti-immigration wing of the Republican party to take center stage they have found their issue. For the final touch they pretend that this is also about helping to keep terrorists out of the country. As a bonus, Republican congressman uneasily eyeing elections next year, can put some space between themselves and President Bush who is partially on the other side of the fence (pun intended) from his own party on this issue, as he supports a guest worker program. Earlier today SAALT put out an alert asking the South Asian American community to immediately write their representative and senators and urge them to vote this down:

If passed, the bill threatens to have a harmful impact on non-citizens, legal residents, and citizens. If enacted, this bill will be the harshest immigration policy in 80 years. The bill was voted out of the House Judiciary Committee late last week. It is expected to be voted on by the entire House as early as Thursday of this week. The day to call your representative in the House is WEDNESDAY, DECEMBER 14th.

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Wikiveda

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Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them?

— Balwinder Shaikh’s Pir in Amrit

Mama Beeb reports that India is putting together an ayurpedia to fight inappropriate patents in developed countries (via Slashdot): Claim: 80% of U.S. patents on medicinal plants by 2000 were of Indian origin

In a quiet government office in the Indian capital, Delhi, some 100 doctors are hunched over computers poring over ancient medical texts… One of them is Jaya Saklani Kala, a young ayurveda doctor, who is wading through a dog-eared 500-year-old text book for information on a medicine derived from the mango fruit…. putting together a 30-million-page electronic encyclopædia of India’s traditional medical knowledge…

Dr Vinod Kumar Gupta, who is leading the traditional wealth encyclopaedia project… reckons that of the nearly 5,000 patents given out by the US Patent Office on various medical plants by the year 2000, some 80% were plants of Indian origin… … in most of the developed nations like United States, “prior existing knowledge” is only recognised if it is published in a journal or is available on a database…

Mogambo is displeased

The ambitious $2m project, christened Traditional Knowledge Digital Library, will roll out an encyclopaedia of the country’s traditional medicine in five languages – English, French, German, Japanese and Spanish – in an effort to stop people from claiming them as their own and patenting them. The electronic encyclopædia, which will be made available next year, will contain information on the traditional medicines, including exhaustive references, photographs of the plants and scans from the original texts…

… ayurvedic texts are in Sanskrit and Hindi, unani texts are in Arabic and Persian and siddha material is in Tamil language… there are some 54 authoritative ‘text books’ on ayurveda alone, some thousands of years old… [Link]

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…then you can’t have our money

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I know that there are many lawyers and current law students that read SM on a daily basis. Therefore I thought it might be of value to point out that the Supreme Court is hearing oral arguments today in a case pertaining to the Solomon Amendment. The Christian Science Monitor reports on the crux of the debate:

At the center of the legal showdown: to what extent military recruiters should have access to law school campuses. The case involves conflicting conceptions of free speech. It also could erode some civil rights laws, which use federal funding to encourage nondiscrimination.

On one side of the current case are a group of law professors and law schools seeking equal treatment of gays interested in serving the nation as members of the armed forces. In protest of the Pentagon’s “don’t ask, don’t tell” policy banning openly gay individuals from the military, the law schools restricted military recruiters from fully participating in school-sponsored employment events.

Military recruiters could still come to campuses, but the law schools’ employment placement offices would not assist them. The message was that the schools would not abet military discrimination against some of their own students.

I have thought a lot about this issue. I am a big time supporter of the military but on this issue I would side with the law schools. The law schools could bar any other employer that openly discriminates, so why not the U.S. military? I understand that a ruling in favor of the law schools could set a dangerous precedent. It would embolden people to protest all kinds of federal laws based on the logic that they were following their conscience. Take for example the pharmacists that oppose filling a prescription to the morning-after pill. In many instances they HAVE to fill the prescription by law. I would not want that to change. The threat of federal money being taken away from a University that only has the best interests of its students (i.e. protecting is LGBT community) in mind does not seem fair to me.

Law schools have “a Hobson’s choice: Either the university must forsake millions of dollars of federal funds largely unrelated to the law school, or the law school must abandon its commitment to fight discrimination,” justices were told in a filing by the Association of American Law Schools.

The federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities, including their law and medical schools and other branches, give the military the same access as other recruiters or forfeit money from federal agencies like the Education, Labor and Transportation departments.

Dozens of groups have filed briefs on both sides of the case, the first gay-rights related appeal since a contentious 2003 Supreme Court ruling that struck down laws criminalizing gay sex.

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Update on Tariq Khan of GMU

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I wanted to quickly update readers on the case of Pakistani American Tariq Khan. If you will recall, Saheli blogged about Tariq, who is a George Mason University student, last month. To recap:

Tariq Khan, now a junior majoring in sociology, said he was standing in front of the recruitment table outside the school student center–as he has often done before – during noontime with a paper sign reading, “Recruiters lie, don’t be deceived,” taped to his shirt. A student approached Khan and initiated a verbal argument, screaming in his face; he then took the flyer and ripped it up in front of him, Khan says.

The student then left and returned with another student claiming to be a Marine having recently served in Iraq, and the three continued a verbal argument that began to escalate, Khan claimed. “I asked the marine, ‘So how many people did you kill?'” Khan said. “And he answered, ‘Not enough.'” The marine student soon ripped Khan’s sign off his shirt and threw it in the trash.

… [A] staff member called campus security, at which point a police officer, Lt. Reynolds, approached Khan and demanded to see his student ID. Khan said he told the officer he was not carrying his ID and tried to walk away when the policeman tried to arrest him and then became violent. “He threw me into the stage,” Khan claimed, referring to a dance area in the student center left from an event earlier in the day, “and I just sort of raised my hands to show I’m not violent and tried to get as much attention by saying, ‘I’m being non-violent and I’m being brutalized.'” [Link]

Just this week, that shining beacon of hope, the ACLU, announced that all charges against Khan have been dropped:

The American Civil Liberties Union of Virginia announced today that government lawyers in Fairfax County have agreed to drop their case against Tariq Khan, a George Mason University student who was arrested while protesting the presence of military recruiters on campus…

After conducting its own investigation into the incident, university officials asked Fairfax County prosecutors not to proceed with the case. The university has also announced that it will be reevaluating its campus speech and protest policies to ensure that they comply with the First Amendment.

The ACLU said it will be reviewing the campus speech policies. “This arrest should never have occurred,” said Willis. “The next step for us is to make certain that GMU does not do this again…” [Link]

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