Amici Curaie: Rendition Conviction, Carceral Tendencies and Galactic Legalese Edition

Italian Judge Convicts CIA Officers in Rendition Trial
Judge Oscar Magi of Court of Milan on Wednesday convicted 22 former CIA agents and a U.S. Air Force colonel on kidnapping charges for the 2003 “extraordinary rendition” of terror suspect Osama Moustafa Hassan Nasr. Jurist reports that the nearly three-year trial is the first in the world involving the CIA’s rendition flights. Blawgosphere reaction is somewhat muted, but Kenneth Anderson, writing over at The Volokh Conspiracy, predicts that such prosecutions are “the wave of the future.” In particular, Anderson suggests that “these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently.” Indeed, he argues that some Democrats may well welcome the verdict — which, notwithstanding sentences of five years and upward, likely has no physical impact besides an inability for the convicted to travel abroad — as a way appropriately punishing and deterring such behaviour in the future. Sabrina De Sousa, one of the convicted, said she feels “abandoned and betrayed” by the U.S. government. The Independent quotes her as saying that “everything I did was approved by Washington … and we are paying for the mistakes right now, whoever authorized this.” De Sousa sued the State Department earlier this year demanding that it invoke diplomatic immunity to quash the prosecution (see her complaint). The U.S. government sought to dismiss her complaint in September. (HT: Georgetown Law’s Security Law Brief.)

Arar v. Ashcroft: An Extraordinarily Rendered Dissent
Also on the rendition beat, in this week’s Harper’s blog, Scott Horton lays into the U.S. Court of Appeals for the Second Circuit about its decision in Arar v. Ashcroft. Horton castigates the court for its dismissal of Maher Arar’s civil action against former U.S. Attorney General John Ashcroft and other government officials in connection with their role in Arar’s “extraordinary rendition” to Syria. When thus rendered, Arar was imprisoned and tortured in a year-long ordeal which, owing to the collaborative role of the RCMP, was the subject of a Canadian parliamentary inquiry and the cause of an apology and substantial compensatory award from the Canadian government. In his dissent to the majority decision that Arar’s suit had not established a sufficient cause of action against government officials, Judge Guido Calabresi charged that the majority was “engaged in extraordinary judicial activism.” Such activism, says Horton, who had earlier testified before the House Judiciary Committee as an independent expert witness in the Arar matter, was in service of nothing more than “extricating political actors from a precarious predicament” and, moreover, “an example of timidity in the fact of governmental misconduct the likes of which have not been seen since the darkest days of the Cold War.” Horton goes further, placing the Arar judgment in the ignominious company of the Dred Scott and Slaughter-House Cases decisions. Horton’s rhetoric is not mere journalistic hyperbole, though: in remarkably strong language, Judge Calabresi wrote that “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

The American Prison State
The United States “literally cannot afford [its] political addiction to incarceration,” says David Cole in The New York Review of Books. The costs, he says, are as much political as they are budgetary. In an eloquent statistical display, Cole describes America’s world-leading carceral tendencies as a country whose imprisonment rate is “six times greater than Canada’s, eight times greater than France’s, and 12 times greater than Japan’s,” and where “African-Americans are 13 percent of the general population, but over 50 percent of the prison population.” Tracking the present punitive legislative and judicial approach back to mid-70’s’ liberal disillusionment, the Reagan Administration’s War On Drugs, and the Clinton-era “three-strikes” laws, Cole argues that the present correctional model so disproportionately affects minorities that judicial legitimacy is implicated: “a legal system that relegates the majority of our most disadvantaged populations to incarceration, and does next to nothing to help them avoid prison or to reintegrate into society upon release, invites disrespect — and crime.” Unfortunately, America’s peculiar political alchemy, wherein its national myth of self-reliance has become an insitutionalized beggar-thy-neighbour-ism, leaves Cole pessimistic about the chances for reform. As ever, by the way, Canadians need not feel so hot about themselves.

Legalese Goes Galactic in Attempt to Conquer Universe
Anne Harrison and the other women in her Bulgarian folk-singing group, decked out in sequined black and gold dresses, were lined up to try out for NBC’s “America’s Got Talent” earlier this year when they noticed peculiar wording in the release they were asked to sign. Any of their actions that day, the contract said, could be “edited, in all media, throughout the universe, in perpetuity.” Yes, throughout the universe. As The Wall Street Journal reports, Harrison and many others “are encountering such everywhere-and-forever language as entertainment companies tap into amateur talent and try to anticipate every possible future stream of revenue.” A spokesman for a Hollywood studio defended the language, saying it is well-accepted boilerplate, but noted that insofar as she knew, “we have had very few cases of people trying to exploit rights on other planets.”

ECHR Rules Against Classroom Crucifix
The European Court of Human Rights handed the young mother of two a victory this week when it found that the Italian practice of installing a crufix in school classrooms violated European guarantees of religious and educational freedom. The decision, which, according to the Guardian , could prompt a Europe-wide review of the use of religious symbols on public premises, said state schools had to “observe confessional neutrality.” Italian education minister Maria Stella Gelmini joined the Vatican in condemning the result: “No one, not even some ideologically motivated European court, will succeed in rubbing out our identity.” Italy had argued that that the crucifix was not only a religious symbol, but also a symbol of Italian state and culture and therefore even could represent secularism, notes the ECHR Blog. “The Court … took into account the nature of the religious symbol concerned (amongst the plurality of meanings, the Court held that the religious connotation of the crucifix was dominant) and its impact on young children,” explains the blog’s author, Antoine Buyse. The case is Lautsi v. Italy (judgement rendered in French only).

Factual Construction and Legal Evolution
At Jotwell, Jonathan Simon praises Gregory J. O’Meara’s paper on appellate court fact-manipulation as “a breakthrough article on role of fact interpretation in the judicial construction of criminal law rules.” O’Meara, says Simon, recasts legal realism as a sort of tripartite compound, Rashomon Effect and Herodotus v. Thucydides. Simply put, appellate courts do things with the facts given them by trial courts that permit them to effect change in the law when they choose. The law changes, Simon says, because “the rigid controls on law leave judges free to change norms by expanding their vision of relevant facts.” Drawing on the work of narrative theorist Paul Ricoeur, Simon notes that O’Meara identifies three phases of non-fictional narrative construction, the documentary, the explanatory, and the narrative. In terms of judicial construction and change, the second stage is crucial. When explaining fact situations, O’Meara says, “appellate courts may obscure explanatory chains that undergird settled decisions in lower courts. Therefore, appellate courts may do what previous theorists suggested: base decisions on factual descriptions that have little to do with historical events.”

Man Sues for Lack of Girlfriend
The casual TV-watcher is probably familiar with the “Axe Effect” (caution: these commercials are probably NSFW). Indeed, the makers of the well-marketed body spray have themselves warned that you should “[u]se Axe responsibly or you might inspire a crime of passion!” Apparently not, though — at least for one luckless romeo in India. Vaibhav Bedi, 26, is seeking £50,000 from Axe’s parent company Unilever for the “depression and psychological damage” caused by the absence of any Axe Effect. “The company cheated me because in its advertisements, it says women will be attracted to you if you use Axe,” Vaibhav says in his complaint. “I used it for seven years but no girl came to me.” Mitch Kowalski over at the FP Legal Post reports that some legal commentators believe that Unilever will resort to the “You’re-too-ugly-for-a-girlfriend” defence. He also wonders what Vaibhav would think of the Axe chocolate man commericial.

In Tax Case, Four Days Save $27 Million
What a difference four days can make. Billionaire Julian Robertson won a $27 million tax case this week after he successfully argued that he wasn’t a New York City resident for the year 2000 and accordingly didn’t owe city taxes, The Wall Street Journal reports. At issue was Robertson’s whereabouts on four days during that year: April 15, July 23, July 31 and Nov. 16. Were Robertson found to have been in New York for even one of those days, he would have crossed 183, a magic number rendering him a city resident for tax purposes. Tax officials, the Journal reports, had aruged that because Robertson didn’t have documentary evidence regarding his whereabouts on those four days, he was presumed to have been resident. But Judge Dennis M. Galliher of New York’s Division of Tax Appeals disagreed and found for Robertson. Documentation on those four days notwithstanding, Robertson’s staff went to extraordinary lengths to track his whereabouts. The judgement notes that his assistant knew that “any day the petitioner was physically present in New York City, even for five minutes, was a ‘New York City’ day unless he was in transit between two points outside New York City.”

Above the Law, Beyond the Pale, Off The Hook
Who was one to root for here? Super-irreverent legal blog Above the Law was sued last week by Professor D. Marvin Jones of the University of Miami Law School. Although he voluntarily dismissed the action on Wednesday, Jones, who had wisely decided to act pro se in the action, was arrested by the Miami police after offering $20 for sex with a woman who revealed herself to be an undercover policewoman. ATL ran with it. They kept running. Perhaps they ran a bit too far, actually, as Jones’ last straw appears to have been a reader-submitted “collage”, published by ATL, that treads queasily close to hybridized Vice Magazine/Der Stürmer territory. Refuting each cause of action in the lawsuit, Copyrights and Campaigns’ Ben Sheffner reports that Jones’ pleadings exemplified poor legal drafting.