Amici Curiae: Pardoning ‘Courage,’ Contracting Integration and Banning All Marriage Edition

With 9/11 trial, bad facts will make bad law
Further to the news that Khalid Sheikh Mohammad will be transferred to New York for trial in civilian court, David Feige, writing in Slate, has turned his mind to who will defend the alleged 9/11 mastermind. “No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial,” Feige notes. Reference to the continent aside — though the thought of a Canadian jury does seem rather curious — “what’s a team of hardworking criminal defense attorneys to do?” Everything they can, he argues, and that’s the problem. “Good criminal defense attorneys are seldom deterred by futility, so it’s reasonable to expect that KSM’s lawyers will make all the arguments there are to make,” Fiege argues. That will likely include arguing for the supression of testimony on the basis that it was obtained through torture, that the government has made a mockery of KSM’s right to a speedy trial, “and a thousand other clever things that should make the government squirm.” Crucially, though, most of these arguments are likely to fail at trial, not because of their legal merit, but because of political realities. And at each stage, argues Fiege, “a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent.” The bottom line: While KSM will be convicted and the U.S. will be able to declare a victory for due process, “the toll his torture and imprisonment has already taken, and the price the bad law his defense will exact, will become part of the folly of our post-9/11 madness.”

Debating the constitutionality of U.S. healthcare reform
President Barack Obama made healthcare reform a central plank of his platform and debate about how best to tackle the challenge of insuring the more than 35 million Americans who lack coverage has been a focal point of public attention since his election. While most agree that some kind of reform is necessary, there is much disagreement about what precisely the U.S. should do. As the editors at PENNumbra note, one of the more contested features is the so-called individual mandate, a federal requirement that every American possess a certain level of insurance. They recently hosted a debate about the constitutionality of such a requirement. Perhaps unsurprisingly, the battle lines were drawn along political lines: David B. Rivkin, Jr. and Lee A. Casey, who served in various Republican administrations and are now at Baker & Hostetler LLP, argue that the mandate cannot be justified under either the Commerce or Taxing and Spending Clauses of the U.S. Constitution. But Jack Balkin of Yale Law School and Balkinization disagrees on both points, arguing instead that, irrespective of the Commerce Clause, the mandate is a bona fide tax that is within Congress’s powers to tax and spend for the general welfare.

Germany considers binding contract for new immigrants
Germany’s immigration commissioner is touting what she says is a novel means of better integrating new immigrants into German society: “integration contracts.” Such contracts, Commissioner Maria Boehmer told Deutsche Welle, would explain what services and assistance were available to new immigrants and at the same time would clarify what the state expects from them. “Anyone who wants to live here and work here in the long term, has to say ‘yes’ to our country,” Boehmer told the paper. “This includes knowing how to speak our language, but also the willingness to participate in our society.” But Jaya Ramji-Nogales of Concurring Opinions is sceptical of the idea: “Even assuming that the provisions relating to services and assistance encourage immigrant enrolment in schools and participation in labour markets, the contracts alone seem entirely inadequate to overcome the complex and stubborn extant barriers to access. And it seems just wishful thinking that a contract could be sufficient to enable a cultural shift in the immigrant population towards ‘German values.'”

IHRL outrage: Old Snake and Liquid Ocelot still at large
Julian Ku at Opinio Juris asks gravely, “Do we need international law requiring video game makers to follow international law in their video games?” He responds to a remarkably thorough and po-faced study by the Swiss NGOs TRIAL and Pro Juventute of the international criminal, humanitarian, and human rights law violations programmed into a long list of first- and third-person shooter video games. The study examines games like “Call of Duty 4,” “Metal Gear Solid 4,” and (weirdly) “True Crime: Streets of L.A.,” noting violations of international law such as pillaging, summary execution, mosque-destruction, and the like; praise, while rare, is reserved for the odd instance where a player is actually penalized for cluster-bombing a church or a street full of civilians. Indeed, it is the lack of a penal context that gets the study’s authors really het up. One may sympathize with the authors’ assertion that games such as the first-person shooter/inquisitor “24: The Game” — which allows one to ticking-time-bombishly “force and maintain [a terrorist’s] stress level so it falls within the ‘Cooperation Zone'” — exemplify “the dangerous tendency to step back from what has been achieved in the field of human rights in the last 60 years.” It’s hard not to (uneasily) laugh, though, at the nonplussed primness of the authors’ complaint that “multiple international and mixed tribunals” and their jurisprudence “have not found their way into the games”, despite these institutions’ having shown that, “in real armed conflicts, those who violate international humanitarian law end up as war criminals, not as winners.”

U.S. appeals court backs Frosty, tosses All Ye Faithful
The U.S. Court of Appeals for the Third Circuit this week kicked-off what the WSJ Law Blog has taken to calling “Establishment Clause” (or holiday) season with its affirming a school district’s power to further a policy of religious neutrality by banning holiday religious music at school events. At issue in the case was a policy that religious holidays are not to be celebrated in the schools, “except in the form of the secular nature of that holiday.” A school board memo recommended that holiday music programs lean towards selections like “Frosty the Snowman.” “Music centered on peace is also a nice touch,” the memo noted. A federal suit was born when a parent objected to the ban on religiosity. As Nathan Koppel notes for the blog, the First Amendment prohibits not only the government’s establishment of a religion but also the disapproval of a particular religion or religion in general. But, the Third Circuit concluded, school districts are not compelled to permit religious holiday music or risk running afoul of the First Amendment. “Certainly, those of us who were educated in the public schools remember holiday celebrations replete with Christmas carols, and possibly even Chanukah songs, to which no objection had been raised,” the majority wrote. But, the court noted, “many decisions about how to best create an inclusive environment in public schools, such as those at issue here, are left to the sound discretion of the school authorities.”

Texas (accidentally) bans marriage
Not gay marriage. All marriage. Well, maybe, maybe not. According to Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for Texas attorney general, a 22-word clause in a 2005 constitutional amendment designed to ban gay marriages has the effect of questioning the legal status of all marriages in the state, the Fort Worth Star-Telegram reports. The offending clause: “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.” Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky argues the wording effectively “eliminates marriage in Texas,” including common-law marriages. “You do not have to have a fancy law degree to read this and understand what it plainly says,” she told the paper. A spokesman for the current attorney general, Republican Greg Abbott, defended the amendment: “The Texas Constitution and the marriage statute are entirely constitutional,” the circularity of the comment apparently lost on him.

Obama pardons ‘Courage’
After 10 months in office, President Barack Obama granted his first pardon — to “Courage,” a turkey spared the Thanksgiving table, the AP reports. Accompanied by daughters Sasha and Malia, Obama continued a White House tradition that traces its origins back more than 50 years. “Thanks to the intervention of Malia and Sasha, because I was planning to eat this sucker, Courage will also be spared this terrible and delicious fate,” Obama said. Courage will now live in Disneyland. Over at Sentencing Law and Policy, however, Douglas A. Berman emphasizes that though the president has been charitable toward the avian world, he has been less so to real people. “President Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without one single clemency grant,” Berman notes, adding that over 3,000 requests for pardons and commutations remain outstanding. “[T]he President has now shown more concern about justice for terrorists and mercy for turkeys than for any others impacted by harshness of the modern the federal criminal system.”

Canadian currency still hilarious to world
How do Canadian counterfeiters summon the nerve to ply their trade in the face of — gasp —copyright protection? In a novel, and perhaps misguided, external legal contribution to the Canadian inferiority complex, Professor Eric E. Johnson rants entertainingly about our bank machines’ habit of issuing copyright notices to accompany dispensed cash. Johnson seems to think these notices superogatory, saying that “Canada does not need to use a copyright notice to have copyright protection. And to the extent the copyright notice is designed to have evidentiary value in a lawsuit, it’s just funny.” While many other countries have currency copyright measures no less stringent than Canada’s , Johnson facetiously makes a nation’s self-esteem covalent with its absence of such protections – the example of Canada’s sister-microstate/imperial gun-platform, the Principality of Sealand, of course, being the guiding example.

Blackwater Inc., useful as ever
The Nation’s Jeremy Scahill reports that the mercenary firm once known (but still referred to) as Blackwater Inc., despite its current legal troubles with its state employer, is heavily involved in secret operations in Pakistan. These include drone strikes against Taliban and al Qaeda members within Pakistan as well as Islamist groups in Uzbekistan, another nation with whom the United States is not at war. “We are using contractors for things that in the past might have been considered to be a violation of the Geneva Convention,” says Lt. Col. (and Professor) Jeffrey Addicott of the Center for Terrorism Law: “In my opinion we have pressed the envelope to the breaking limit” and “if we were subjected to the International Criminal Court, some of these guys could easily be picked up, charged with war crimes and put on trial. That’s one of the reason’s we’re not members of the International Criminal Court.” Among other likely contraventions of international law, Blackwater employees have adopted undercover identities as humanitarian aid workers (“nobody even gives them a second thought”), itself a violation of Geneva Conventions anti-perfidy provisions that attracts the particular scrutiny of Kevin Jon Heller, here.

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