Majikthise

O'Keefe prosecutor recused himself/Lindsay on GRITtv today

Interesting news from the WSJ's law blog:

The plot thickens a bit down in the Big Easy over the arrest of James O’Keefe and three other activist arrested last week while trying to capture secret footage in the office of Sen. Mary Landrieu (D. La.). On Monday, the U.S. attorney in New Orleans recused himself from O’Keefe’s case, citing, well, not very much.

A DOJ news release said simply that Jim Letten, the U.S. Attorney for the Eastern District of Louisiana, recused himself from the case a day after the Jan. 25 arrests. Letten’s top lieutenant, assistant U.S. Attorney Jan Mann, has taken over.

No official reason has been offered for the recusal, but WSJ blogger Ashby Jones speculates that it might have to do with the fact that one of James O'Keefe's co-accuseds is Robert Flanagan, the son of an acting U.S. Attorney in Louisiana. 

By the way, I'm going to be on GRITtv this afternoon to talk about the phone tampering scandal, probably shortly after 1:30 EST. I'll post the video as soon as I can.

Dworkin on the "appalling" Citizens United decision

Ronald Dworkin has a great essay about the Citizens United decision in the New York Review of Books. 

Here's a taste.

On the most generous understanding the decision displays the five justices’ instinctive favoritism of corporate interests. But some commentators, including The New York Times, have suggested a darker interpretation. The five justices may have assumed that allowing corporations to spend freely against candidates would favor Republicans; perhaps they overruled long-established laws and precedents out of partisan zeal. If so, their decision would stand beside the Court’s 2000 decision in Bush v. Gore as an unprincipled political act with terrible consequences for the nation.

We should notice not just the bad consequences of the decision, however, but the poor quality of the arguments Justice Kennedy offered to defend it. The conservative justices savaged canons of judicial restraint they themselves have long praised. Chief Justice Roberts takes every opportunity to repeat what he said, under oath, in his Senate nomination hearings: that the Supreme Court should avoid declaring any statute unconstitutional unless it cannot decide the case before it in any other way. Now consider how shamelessly he and the other Justices who voted with the majority ignored that constraint in their haste to declare the Act unconstitutional in time for the coming mid-term elections.

Read the rest here.

Nurse whistleblowers face jail time for reporting quack to medical board

Dr. Dave Gorski reports on a stunning miscarriage of justice: Two nurses face possible  jail time because they filed an anonymous complaint against a doctor who was peddling natural remedies out of the ER of their small rural hospital in Kermit, TX.

The quack turned out to be a vindictive quack. When the Texas Medical Board informed Dr. Rolando Arafiles, Jr. that he was under investigation, he lodged a complaint of criminal harassment with the Winkler County Sheriff, who worked tirelessly to unmask the anonymous tipsters:

To find out who made the anonymous complaint, the sheriff left no stone unturned. He interviewed all of the patients whose medical record case numbers were listed in the report and asked the hospital to identify who would have had access to the patient records in question.

At some point, the sheriff obtained a copy of the anonymous complaint and used the description of a "female over 50" to narrow the potential complainants to the two nurses. He then got a search warrant to seize their work computers and found a copy of the letter to the medical board on one of them. [New Statesman]

This is a a caliber of detective work scarcely seen outside of TV cop shows, especially for non-violent, non-crimes like complaining to a medical board. How did Dr. Arafiles get such vigorous policing from the Winkler County Sheriff's Department? Dave wonders if Dr. Arafiles and Sheriff Robert Roberts, Jr. are buddies. I think I found the answer. According to a lawsuit filed by the nurses, Arafiles and Roberts were--wait for it--associates in the herbal supplement business!

In theory, the Texas Medical Board allows anonymous tips, but privacy protections are so weak that the sheriff was able to figure out who blew the whistle.

The nurses, Anne Mitchell and Vickilyn Galle, were charged with improper use of official information, i.e., the state alleges that they improperly divulged confidential patient information in their complaint to the medical board. In fact, complaints to the medical board are HIPAA-exempt, which means that the nurses didn't have to get patient permission to share medical information with the board.

Dr. Arafiles was familiar with the workings of the Texas Medical Board, having already been disciplined in 2007. That time, the board fined him $1000 for failing to properly supervise a nurse practitioner and ordered him to educate himself on ethics, medical records and the treatment of obesity.

The Texas Nurses' Association has set up a legal defense fund for the Kermit Two, which you can support by clicking here. Dave is encouraging his readers to write polite letters to the Wikler County District Attorney's Office protesting the charges. 

So much for tort reform

Unnamed conservatives tell US News that they'll sue to stop health care reform.

Third-rate hatchet job on Sotomayor gains traction

Think Progress compiles a list of smears against Obama's presumptive Supreme Court nominee, Sonia Sotomayor, who is being caricatured as dumb and pushy for no good reason. If confirmed, she would be first Latina Supreme Court justice. The subtext (or, the top text if you're a conservative talk radio blowhard), is that Sotomayor's impressive academic and professional record doesn't prove she's qualified because she must have been a beneficiary of affirmative action.

Thune: No gay Justice

Sen. John Thune gives away the game:

[C]onservative leaders have warned the nomination of a gay or lesbian justice could complicate Obama's effort to confirm a replacement for Souter, and another Republican senator on Wednesday warned a gay nominee would be too polarizing.

"I know the administration is being pushed, but I think it would be a bridge too far right now," said GOP Chief Deputy Whip John Thune. "It seems to me this first pick is going to be a kind of important one, and my hope is that he'll play it a little more down the middle. A lot of people would react very negatively."

Thune's predicting that his own party is full of bigots who would oppose a nominee on the bass of their sexual orientation. If Republicans oppose a gay nominee for being gay, knowing nothing of their stance on any issue, they thereby discredit their own standard exucses for opposing legal equality for gays and lesbians.

Naked prejudice is a turnoff, so sophisticated conservatives are careful to couch their opposition to gay rights in terms of opposition to certain laws, as opposed to opposition to gay people. For example, the party line is that gays can't get married because it would be "judicial activism" to interpret a marriage statute as applying to everyone, and they hate judicial activism, so sorry, gay people...

By balking at the prospect of a gay nominee, the Republicans would be acknowledging what we've known all along, that their recalcitrance is not about religious freedom, or the family, or any of the usual bullshit excuses for prejudice--they just plain don't like gay people.

"FRED" is the new "enemy combatant"

Our go-to guy for all things GTMO, the Talking Dog, reacts to yesterday's announcement that the prisoners at Guantanamo will no longer be designated "enemy combatants."

No more enemy combatants means no more holding people indefinitely without legal rights or trials based on scant evidence of tenuous connections to terrorism, right? Sadly, no.

TD explains:

But no... instead, as Scotusblog reports here, the main effect of the change(TM) is to change the nomenclature, and the hypothetical doctrinal bases ("derived from international law rather than from inherent Presidential power")... but ... the policy is... largely the same as that in the Bush Administration. And that policy is, quite literally, an "enemy combatant" (now to be called... something else) is anyone we say had any relation to anyone whatsoever that we say is bad. And the truly sad thing is... I'm not even making that up!

The old Bush administration legal theory said that the president had constitutional power to designate people as enemy combatants. That theory has been rejected.

Luckily for fans of indefinite detention, there's another theory whereby international law can designate people as some other thing, using more or less the same criteria as the president used to designate enemy combatants.

The Talking Dog estimates that 100% of the people who used to be enemy combatants will end up being called some other thing--with no substantive change in their legal rights. If they're looking for a snappy new name, TD suggests "Foreign Renditioned Enemy Detainee," or "FRED."

Exclusive interview with a GITMO guard

The Talking Dog interviews former military police officer Terry Holdbrooks, Jr., who served as a prison guard at the Guantanamo Bay detention center between 2003 and 2004.

Holdbrooks says he and his fellow military police got a lot of propaganda, including a visit to Ground Zero before they shipped out,  but not much guard training before they were dispatched to guard detainees billed as too dangerous to be contained within the U.S. legal system:

As to "professionalism"... that was just not a word I would use to describe guards at Guantanamo, other than when VIPs such as my home state's esteemed Senior Senator John McCain or generals, diplomats or other dignitaries showed up, when suddenly, everything would appear to be in perfect order. Otherwise, most guards were just eager to leave, and new guards were disappointed to be there. (While the guards were less than professional, the medical staffs, usually Navy and Marine Corpsmen were quite professional... patient care was patient care, whether the patient was an American or an accused terrorist.)

These detainees were supposedly so dangerous that they couldn't be housed at Fort Leavenworth or any other US Supermax facility. Yet the military felt comfortable entrusting them to military police officers who had never worked as prison guards before.

Kinda of makes you wonder whether the military believed its rhetoric about the terrible dangers these detainees would pose if they were ever allowed within the U.S. legal system.

Joe Lieberman does something good: Urges judiciary to free PACER

Credit where credit is due: Sen. Joe Lieberman is using his power as chair of the Senate Oversight Committee to push the federal judiciary to stop charging users 8 cents per page to download federal court filings online.

In a letter sent last week, Lieberman asked why — when as of the end of 2006, the federal judiciary had a $150 million surplus in its technology fund — the judiciary continues to charge the public for documents. Last we checked — and we use PACER pretty much every day — it was 8 cents per page for most documents, a fee that can create quite a tally by the end of the month for journalists, lawyers and those twisted souls who read court filings in their spare time.

“While charging for access was initially required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913) so that courts ‘may, to the extent necessary’ instead of ’shall’ charge fees ‘for access to information available through automatic data processing equipment,” Lieberman wrote. [WSJ Law Blog]

Go get 'em, Senator.

Actor who played steroid dealer in The Wrestler arrested for steroid distribution

One of my favorite guilty pleasures is the Dateline DEA newsletter, the Drug Enforcement Agency's a "bi-weekly email informant." The DD is drug war news you can use.

This week's edition is especially juicy. We learn that the DEA helped arrest 750 alleged members of the Sinaloa drug cartel after 21-month multi-agency investigation. The best part is that the investigation was called “Operation Xcellerator”--which suggests that unemployed porn writers have infiltrated the DEA, again.

Here's another item from this week's DD. The actor who played the steroid dealer in the movie The Wrestler was arrested on real-life steroid distribution charges:

New York Man Charged with Possession of Steroids and Assault on Federal Authorities

Scott Siegel of New Rochelle, New York, was charged with distributing and possessing with intent to distribute anabolic steroids, as well as assaulting federal officers. Mr. Siegel played the role of a steroid distributor in the movie “The Wrestler,” which was recently released. According to the complaint, on February 18, 2009, the defendant, when approached by law enforcement officers, fled in his car and intentionally hit several police department and DEA cars. In addition, the defendant drove his car directly at an officer with the DEA’s Westchester Resident Office in an apparent attempt to run him over.

More on Scott Siegel's alleged steroid-dealing from blogger Anthony Roberts.

Finally, an excellent DEA fun fact:

Did you know that the first female narcotics agent was hired by the DEA’s predecessor agency, the Bureau of Narcotics, way back in 1933? Elizabeth Bass rose to the position of District Supervisor in Chicago and was a longtime friend of First Lady Eleanor Roosevelt.