Thursday, October 29, 2009

Double Jeopardy In Jeopardy: Obama Signs Hate Crime Expansion

Crossposted from Stop The ACLU:

by Hans Bader

Today, President Obama signed into law a bill that will dramatically expand the federal hate crimes law, enabling prosecutors to bring federal charges against people who were previously found innocent of hate crimes in state court. The hate-crimes provisions were added to a defense appropriations bill, which the President signed in a White House signing ceremony this afternoon at around 2:30 p.m.

The new law dramatically expands the reach of the existing federal hate-crimes law that was already on the books, by getting rid of the requirement that a hate crime affect federally-protected activities to be prosecuted in federal court. It also adds sexual orientation, gender, disability, and transgender characteristics to a law that was originally designed to protect racial minorities.

The hate-crimes bill was opposed by the U.S. Commission on Civil Rights for allowing the reprosecution in federal court of people found innocent in state court. The Commission called the new law a “menace to civil liberties” because it is an end-run around constitutional guarantees against double-jeopardy.

As explained earlier, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy. Civil libertarians like Nat Hentoff and Wendy Kaminer thus object to the bill on double-jeopardy grounds. Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of prosecuting all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial. When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision.

Passage of the bill was aided by lousy reporting, in which some journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.
But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.” Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

The Obama administration has long supported the hate-crimes bill, which it used as a wedge issue in the 2008 election.

As law professors like Jonathan Turley and Eugene Volokh have noted, the Obama administration recently urged restrictions on hate speech at the United Nations, joining in calls to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation in violation of international human-rights treaties. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, discussing the racial implications of the death penalty, and calling homosexuality immoral. In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.

Friday, October 23, 2009

NYS GOP Runs "WFP" Candidate in Congressional "Special Election," Snubbing Conservative Hoffman

Newt Gingrich should know better (link), but it's not surprising that some national and NY State Republicans have chosen Dede Scozzafava as the GOP candidate in NY's 23rd Congressional District, forcing a three-way race with a strong showing from the Conservative Party candidate, Doug Hoffman. Ms.Scozzafava is an embarassment. She supports "card check" legislation, and was endorsed by the Working Families Party, the political arm of ACORN. Maybe this election could be decided by who can go out and get the most people to sign cards, instead of voting.

Interestingly enough, ACORN's political partner, the Service Employees International Union, has endorsed the Democrat, Bill Owens. While it looks like the lefties are "hedging their bets," there's also this Politico story (link): "'Chairman Steele hasn’t put up a cent, not even the obligatory $5,000,' said a New York-based GOP operative. 'There’s been no support from the RNC. Democrats are going all out for this race. Everyone’s in the same direction.' ...So far, the National Republican Congressional Committee has been Scozzafava’s only lifeline, spending $355,000 for ads on her behalf." I'm on Steele's side on this one.

Obama held a fundraiser for Owens in NYC (link), and "The Club for Growth has spent $146,000 with its own anti-Scozzafava ads — and has committed an additional $100,000 to the race," according to the Politico story. So she's being outspent from both the left and the right...this is a bad thing? It looks like the NYS GOP, and the NRCC are learning an age-old lesson of politics: when your party is a zombie-like mirror of the other party, your party is already dead. People are being driven to the right, as shown by Hoffman's numbers. Scozzafava should drop out, and endorse the election of a Conservative to Congress from the 23rd District of New York!

Barring that, the Democrat will probably win. I don't live in that district, so I don't have a vote. As a NY'er, though, I have an interest in my state's congressional delegation, as a whole. That's why I'm hoping against the odds that Doug Hoffman wins this special election. Even if he doesn't win, but beats Scozzofava, the NYS GOP leadership needs to step aside for some new blood. We just need at least 50 more "Hoffmans" to step up to the plate of NY politics.

There is a signifigant conservative presence in NY, both the city and the state. These are known as "disaffected voters," who don't bother voting, when there are no candidates that have conservative principles. Notice that Peter King remains in office because of his conservative voting record, and I'd like to see Mr. Hoffman become his peer.

PS: Since the first draft of this column, Sarah Palin has endorsed Hoffman. This race will be talked about alot before election day, and I'm just catching up. Here are some additional links:

Michelle Malkin on Scozzafava

Glenn Beck interviews Hoffman transcript

Rahm Emmanuel: The Most Dangerous Man In America?

This guy's going to destroy Obama's presidency, and tear our nation apart. Where is TIME magazine on this story?

Thursday, October 15, 2009

Why the White House Will Lose It's "War on Fox News"

White House Communications Director Anita Dunn said this on CNN: "If you were a Fox News viewer in the fall election, what you would have seen would have been that the biggest stories and biggest threats facing America were a guy named Bill Ayers and something called ACORN. I mean, the reality of it is that Fox News often operates almost as either the research arm or the communications arm of the Republican Party. And it's not ideological. I mean, obviously there are many commentators who are conservative, liberal centrist, and everybody understands that. What I think is fair to say about Fox and certainly the way we view it is really that it is more a wing of the Republican Party."

Wow. I was a FNC viewer in the fall election, and I remember it a bit differently. McCain was routinely criticized, especially his actions during the financial collapse. Obama was covered as the untested "phenomenon." Of course he received a higher level of scrutiny, on Fox, at least. He was much more of an unknown. He was heavily criticized by Sean Hannity, but got a fair interview from Bill O'Reilly. The biggest threats to America FNC reported on were the global financial crisis, Al Queda, Iran, and North Korea. ACORN turned out to be a bigger scandal than FNC was reporting at the time, so maybe Ms. Dunn shouldn't have brought them up in her statement.

Speaking of which, wasn't much of the rest of the "elite" media getting spoofed for being "in Obama's pocket" on all the comedy shows? What if we "flip" Director Dunn's statement: "If you were a MSNBC viewer in the fall election, what you would have seen would have been that the biggest stories and biggest threats facing America were a guy named Rush Limbaugh and something called FOX NEWS. I mean, the reality of it is that MSNBC often operates almost as either the research arm or the communications arm of the Democratic Party. And it's not ideological. I mean, obviously there are many commentators who are liberal, conservative centrist, and everybody understands that. What I think is fair to say about MSNBC and certainly the way we view it is really that it is more a wing of the Democratic Party." Wow, again. If I was president, I would sooner hire Dennis Miller as my White House Spokesman than let any of my staff say that (whether I believed it or not)!

It looks to me as if the WH is "projecting" their relationship with MSNBC onto Fox News. If I remember correctly, Pres. Bush had a few "problems" with FNC during his WH tenure. When FNC, or even Limbaugh would criticize the administration, they sent out people to respond. They also sent people to MSNBC, CNN, and the rest of the major news outlets, on a regular basis. This administration's "boycotting" of FNC is a bad move, politically. If this kind of statement is what they're putting out to the rest of the media, they're shooting themselves in the foot.

This is part of a bigger picture, of course. There is revived talk about restricting speech on talk radio, and the internet. At this point, I'm starting to see a pattern to this administration: lot's of talk, and no action. I doubt they'll have the ability to stay off of Fox News Channel until the end of the year (as they've advised FNC), much less bring back the "fairness doctrine." FNC is not going to stop covering the news, whether the Obama Administration gives them any interviews or not. There are too many "big news" things on the OA's plate for them to deal with the whole "free/critical speech" issue. As it is, it looks like they're farming it out to people who think nothing of insulting millions of people, in an official capacity. Many FNC viewers happen to be some of the same people who are protesting in opposition to his health care initiative, which makes the statement seem even more political.

All administrations take media criticism, and they usually have to respond to it, sooner or later. Eventually, others in the media will ask the questions being asked now on FNC, as happened during the campaign. Remember that? George Stephanopoulos got criticized for asking Obama a question about Bill Ayres. It was said that he got the question from Sean Hannity, and maybe he did. So? It was a legitimate question, to such an "unknown" candidate. The media "backlash" to the question is more telling than Obama's actual response to the question. These media people know how to stick to the script: Demonize Fox, Rush, Hannity, Beck, and all of the people that listen to them.

I'm OK with that. As a conservative, I'm proud to be "demonized" for who I listen to (and used to it). MSNBC and CNN are FNC's competitors, and they're getting their clock's cleaned in the ratings, so it's understandable. Watching the administration "echo" these criticisms is fine, too. They're not exactly "making friends and gaining influence" with this tactic, while the "opposition" is gaining exposure, and growing. It's taking more "political capital" for the OA to get anything done, every passing day, and the days turn to weeks, then months. Let's see how long until an administration official shows up on Fox again. My money's on "before the new year."

Tuesday, October 06, 2009

Pakistan Orders Major Offensive: Will Obama Match it on the Afghan Side?

Something has been bothering me about our situation in Afghanistan. It seems that Pakistan is actually engaging Al Queda and the Taliban, and we're debating a "surge" in troops on the Afghan side of the border. It's a very complicated situation, but in simple terms, here's what it looks like: Pakistan is actually "stepping up to the plate" in this front of the war, and perhaps driving some of the foreign fighters back into Waziristan.(link)

Pakistan has largely beaten back a Taliban insurgency in the northwestern Swat Valley in recent months and intelligence officials say the country is preparing a major offensive against al-Qaida and the Taliban in South Waziristan. The military has been blockading the region and seeking to encourage other tribes to rise up against Hakimullah.

So what's happening on the Afghan side of the Waziristan border? (link)

"I don't foresee the return of the Taliban. Afghanistan is not in imminent danger of falling," Jones said. "The al-Qaida presence is very diminished. The maximum estimate is less than 100 operating in the country, no bases, no ability to launch attacks on either us or our allies."

In fact, Jones numbers may be correct, but he doesn't mention the numbers of Al Quaeda across the Waziristan border who do have the "ability to launch attacks on either us or our allies." Osama escaped from Afghanistan into Pakistan after the battle of Tora Bora, according to many accounts (JF Kerry's, among other notables). Waziristan is the area he actually escaped to (link), and the Pakistani military is finally moving in that direction. This should be encouraging to the US, but our current administration is waffling on "stepping it up" on the Afghan side of the border.

Then there's this, also from the second link:

Administration officials have tried, instead, to focus some of the debate on Pakistan, noting that Islamabad has stepped up its campaign against militants along the border. Those efforts, said Jones, could provide a key shift in the war.

"We hope that will lead to a campaign against all insurgents on that side of the border, and if that happens, that's a strategic shift that will spill over into Afghanistan," he said.

Being a layman, I don't have all the intel that the policy makers have. Still, it looks as if it's been "spilling over" into Afghanistan since Pakistan started their campaign. US casualties have been increasing for months. I remember something Obama said during the campaign, about chasing down Osama across the border, if need be. This looks like the best chance he'll get to fulfill that declaration, and for some reason now our strategy needs "reassessment?"

Maybe it does. The Taliban and Al Queda seem to be quite comfortable operating in Afghanistan to a degree not seen in years. Something has to change there, and soon. Karzai's election was as fraudulent as Ahmedinejad's, though without the ensuing violence. That's the political part of the equation, and it will factor into the military equation. President Obama is between "a rock and a hard place" on this one. He should authorize more troops, and change the "strategy" simultaneously.

Clamp the vise on both North and South Waziristan, in cooperation with Pakistan. This is the "dead-ender's" last refuge, and the suspected location of Osama. I don't understand how this could be a partisan issue, since the president campaigned on it. However, the liberal congressional caucus is "showing their power" by introducing a bill to defund any "surge" in Afghanistan troop levels. LOL-That won't go anywhere, yet, but Pres. Obama's waffling isn't reassuring, either. Let's see some action, Mr. President.