How Appealing

Thursday, December 6, 2007

“C.I.A. Destroyed 2 Tapes Showing Interrogations”: Friday’s edition of The New York Times will contain this article. The newspaper has also posted online this related letter filed in the Zacarias Moussaoui case.

And The Washington Post on Friday will contain a front page article headlined “CIA Destroyed Videos Showing Interrogations; Harsh Techniques Seen in 2002 Tapes.”

News of the existence of these recordings began to emerge in mid-November 2007, as reflected in the articles I collected in this earlier post.

Posted at 11:00 PM by Howard Bashman

“Army officer recounts chauffeur’s capture”: Carol Rosenberg of The Miami Herald provides a news update that begins, “U.S.-allied Afghan forces captured Osama bin Laden’s driver at a roadblock — alone in a sedan allegedly with two surface-to-air missiles — in the early days of the battle for Kandahar, an Army officer testified Thursday in the Pentagon’s effort to try the man as a war criminal.”

Posted at 10:34 PM by Howard Bashman

The White House has nominated William E. Smith of Rhode Island to serve on the U.S. Court of Appeals for the First Circuit: You can access today’s announcement at this link. He currently serves as a U.S. District Judge for the District of Rhode Island. The Providence (R.I.) Journal has this blog post noting that Judge Smith was born in Idaho, but it is doubtful that Smith’s confirmation will be delayed over concern about whether someone from Idaho should fill this particular First Circuit seat.

If confirmed to the First Circuit, Judge Smith will join these other currently serving Judge Smiths at the federal appellate court level: Third Circuit Judge D. Brooks Smith; Fifth Circuit Judge Jerry E. Smith; Eighth Circuit Judge Lavenski R. Smith; Ninth Circuit Judge Milan D. Smith, Jr.; and Ninth Circuit Judge N. Randy Smith, all of whom were appointed to their current courts by Republican Presidents.

Today’s White House announcement also includes the nomination of Missouri Supreme Court Judge Stephen N. Limbaugh, Jr. to a seat on the U.S. District Court for the Eastern District of Missouri. I understand why the justices on a state’s highest court would agree to serve as federal appellate judges, but I remain mystified when a judge or justice on a state’s highest court decides to leave that post for a federal trial court judgeship. In news coverage, The St. Louis Post-Dispatch provides an update headlined “Bush picks Limbaugh to federal court.”

Posted at 10:05 PM by Howard Bashman

“[W]e conclude that ‘innocent possession’ is not a defense to being a felon in possession of ammunition”: So holds the majority on a divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit in a ruling issued today. The majority rejected the defendant’s argument that “if a defendant obtains ammunition innocently, with no illicit purpose, and takes adequate measures to rid himself of it as promptly as reasonably possible, he cannot be convicted.”

Posted at 8:40 PM by Howard Bashman

“C.I.A. Destroyed Tapes of Interrogations”: The New York Times provides a news update that begins, “The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Al Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about the C.I.A’s secret detention program, according to current and former government officials.”

And The Associated Press reports that “CIA videos interrogations in ’02, destroys tapes in ’05.”

Posted at 6:02 PM by Howard Bashman

“Appeals Court ruling favors Phelps-Roper”: The Topeka Capital-Journal provides a news update that begins, “The U.S. Court of Appeals for the 8th Circuit in Missouri has ruled that Shirley Phelps-Roper is entitled to a preliminary injunction while the constitutionality of statutes restricting where members of Topeka-based Westboro Baptist Church can picket is reviewed.”

And James Oliphant, at “The Swamp” blog of The Chicago Tribune, has a post titled “Court allows group to picket soldiers’ funerals.”

My earlier coverage of today’s Eighth Circuit ruling appears at this link.

Finally, in related news, The Associated Press provides an article headlined “Supreme Court hears arguments on funeral picketing law” that begins, “The Kansas Supreme Court was asked Thursday to strike down a section of the state’s funeral picketing law that prevents it from being enforced.” You can view the text of the Kansas law in question by clicking here. Today’s Eighth Circuit ruling involved a pair of Missouri laws.

Posted at 4:05 PM by Howard Bashman

“Senate Panel Approves Bill To Televise SCOTUS (Again)”: At his blog “Washington Briefs,” Lawrence Hurley of The Daily Journal of California has this post today.

As noted in the April 17, 2006 installment of my “On Appeal” column for, I’d be quite content to have same-day oral argument audio in all argued cases.

Posted at 2:55 PM by Howard Bashman

An untidy federal district court docket is the price that must be paid for the district court’s and the federal prosecutor’s having essentially ignored the Seventh Circuit’s earlier mandate deciding the merits of this appeal: Chief Judge Frank H. Easterbrook, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, issued this interesting decision today denying the federal prosecutor’s motion to recall the Seventh Circuit’s mandate in the case.

Posted at 2:44 PM by Howard Bashman

Dissenting from the denial of rehearing en banc, five Ninth Circuit judges announce that they would hold section 104 of the Antiterrorism and Effective Death Penalty Act unconstitutional because it violates the separation of powers: Circuit Judge Stephen Reinhardt‘s dissent from the denial of rehearing en banc, in which four of his Ninth Circuit colleagues have joined, begins:

I would hold that section 104 of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) (codified in relevant part at 28 U.S.C. § 2254(d)(1)), violates the separation of powers doctrine and is unconstitutional. Section 2254(d)(1) constitutes a severe congressional incursion on the federal “judicial power,” which Article III of the Constitution vests wholly and exclusively in the federal courts. It does so in two principal ways: first, by prohibiting the federal courts from applying the ordinary principles of stare decisis in deciding habeas cases involving prisoners held in state custody, thereby interfering with the federal courts’ normal adjudicatory process; and second, by requiring federal courts to give effect to incorrect state rulings that, in the federal courts’ independent judgment, violate the Constitution. Such a congressional breach of the federal judiciary’s integrity and independence, of its duty to maintain the supremacy of the Constitution, and, indeed, of the constitutional structure itself, should not go unchecked by this court.

You can access the complete dissent from today’s denial of rehearing en banc in Crater v. Galaza at this link.

Posted at 1:32 PM by Howard Bashman

Cows fight the power in Wisconsin — and win: The Associated Press provides a report headlined “Supreme Court upholds nearly $533,000 award in stray voltage case” that begins, “The Wisconsin Supreme Court on Thursday upheld a nearly $533,000 award to Marathon County dairy farmers who claimed a power company’s stray voltage hurt their cows’ milk production.”

You can access today’s 4-3 ruling of the Supreme Court of Wisconsin at this link. A related decision the court also issued today can be accessed here.

Posted at 12:40 PM by Howard Bashman

Eighth Circuit recognizes First Amendment right of members of Westboro Baptist Church to picket funerals of soldiers and orders preliminary injunction against enforcement of Missouri laws intended to criminalize such picketing: You can access today’s ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit at this link.

The opinion explains that the plaintiff “alleges members of her church believe God is punishing America for what WBC considers the sin of homosexuality by killing Americans, including soldiers. As part of her religious duties, she believes she must protest and picket at certain funerals, including the funerals of United States soldiers, to publish the church’s religious message: that God’s promise of love and heaven for those who obey him in this life is counterbalanced by God’s wrath and hell for those who do not.”

Posted at 11:53 AM by Howard Bashman

“High court hears Gitmo detainee rights case; The justices appear split, with Kennedy in the middle; Regardless of the ruling, which may be months away, the prisoners’ fate may rest with the next president”: David G. Savage has this article today in The Los Angeles Times.

Today in The Boston Globe, Charlie Savage has an article headlined “Showdown on detainees’ rights; Guantanamo inmates press Supreme Court.”

Joan Biskupic of USA Today has an article headlined “No quick resolution to Guantanamo detainee cases; High court weighs foreign prisoners’ rights, fair hearings.”

James Oliphant of The Chicago Tribune reports that “Court hears arguments on Gitmo; Habeas corpus for detainees at issue.”

And in The Wall Street Journal, David B. Rivkin Jr. AND Lee A. Casey have an op-ed entitled “Gitmo Goes to Court: The judiciary has no business managing how we fight wars abroad.”

Posted at 9:22 AM by Howard Bashman

“Poor medical care at Nevada prison cited; Inmates at the Ely facility have been denied help for heart problems, diabetes and other serious medical conditions, records show”: Ashley Powers and Henry Weinstein have this article today in The Los Angeles Times.

According to the article, “Attorneys for some Ely inmates say they believe the lack of medical care has played a role in a high percentage of death row inmates giving up their appeals and ‘volunteering’ to be executed. All but two of 12 inmates executed in the state in the last 30 years have been volunteers. No other state in the country has had close to that percentage of volunteers, records show.”

Posted at 9:10 AM by Howard Bashman

“Time for Cameras: Those who are interested shouldn’t have to line up overnight to watch Supreme Court debates.” This editorial appears today in The Washington Post.

Posted at 9:00 AM by Howard Bashman

“Defense Challenges Status of Guantanamo Detainee”: The New York Times today contains an article that begins, “Challenging one of the central pillars of the Bush administration’s detention policies, lawyers for a detainee who is charged as Osama bin Laden’s driver argued here Wednesday that he should be treated as a prisoner of war and should not be tried by military commission. The military judge at a pretrial hearing of the former driver, Salim Ahmed Hamdan, did not rule on the request but opened the way for the defense to present evidence on the issue at a hearing that is to begin Thursday.”

Today in The Miami Herald, Carol Rosenberg reports that “Detainee wins one, loses one; As Osama bin Laden’s driver tries to fend off war-crimes charges, a judge said he would consider his POW claim, but not testimony from the reputed 9/11 mastermind.” Yesterday, Rosenberg previewed the matter in an article headlined “New push to prosecute bin Laden’s driver.”

And today in The Los Angeles Times, Carol J. Williams reports that “Bid Laden driver to argue he’s POW; The Guantanamo detainee’s lawyers allowed to contend that he is out of the reach of a military tribunal.”

Posted at 8:45 AM by Howard Bashman

“Bonds’s Team Has Trouble Deciding Who’s on First”: Today in The Wall Street Journal, Justin Scheck has an article that begins, “Over two days last week, baseball star Barry Bonds tried to persuade top San Francisco defense lawyer John Keker to represent him in a federal perjury case. But the talks started faltering when the multimillionaire slugger asked Mr. Keker to handle his case at a steep discount, say several people briefed on the conversations.”

Posted at 8:05 AM by Howard Bashman

“The Current Supreme Court Term, and the Pivotal Role of ‘Swing’ Justice Anthony Kennedy”: Edward Lazarus has this essay online today at FindLaw.

Posted at 7:54 AM by Howard Bashman