Constitutional Law

NOTE: Following is a reprint of what I wrote for July 4 in 2007 and reprinted in 2008:

Whenever I look around on July 4, the scene is long on fireworks, beer, and merrymaking, and too short on discussion of what Independence Day is all about.

The Declaration of Independence was hardly signed by a bunch of pacifists. The signers must have realized that the bloodshed among the warring sides would lengthen and intensify with the signing of the Declaration of Independence, and it did. Violence begets violence, and the rampant violence that led to Britain's surrender did not take place in a vacuum. Instead, it has fed into all subsequent American wars and smaller military actions. The United States' repeated victories in wars (and the Vietnam War probably would not have dragged on so long were it not to become America's first war defeat) likely has made the United States all the more militaristic and cocksure militarily. 

By now, the United States government thrives on control backed by force, the threat of force, and punishment, not only through military might, but also through an overgrown and overbearing criminal "justice" system of police, laws, money, prosecutors, courts, and prisons;  an overgrown national security system that leaves us little privacy, security, or sufficient liberty; and an overgrown spying and "intelligence" system.

Fortunately, a strong movement continues in favor of civil liberties and government by the governed rather than the reverse. The movement includes the American Civil Liberties Union, fearless and skilled criminal defense and Constitutional lawyers, and the drug legalization movement.

July 4 is meaningless without an ongoing struggle for civil liberties. Now is the time to join that struggle. Jon Katz.

Thanks to listserv members for bringing my attention to the following material on Judge Sonia Sotomayor, looking at her performance as a judge and as a lawyer:

- "A View of Judge Sonia Sotomayor from Cyberspace," by Arthur Bright.

- "Sotomayor Sides With the Cops - And persuades a Republican judge to go along with her," by Emily Bazelon.

When Bill Clinton was elected president, I was happy to be seeing George Bush I leave the presidential palace, but did not have high hopes for
Bill Clinton -- including consideration of his detour to attend an execution during the presidential campaign -- but had higher ones than I had for Bush I. My expectations became my views of Bill Clinton's presidency to this day.

I have had the same views right up to today about Barack Obama. He is a great improvement over George Bush II, but I am not holding my breath for him to do any better than Bill Clinton in Clinton's rather centrist approach (at best) to criminal defendants' rights, civil liberties, and immigrants' rights, among other important social justice items.

Similarly, just as I expected Bill Clinton to do less damage with federal court appointments than his predecessor, I anticipated the same from Obama, but did not expect better. From what I know so far about Supreme Court nominee Sonia Sotomayor, she is no better a pick than Clinton's nominations of Justices Ruth Bader Ginsburg and Stephen Breyer; the latter two seem to have excellent legal and general minds and generally to take great care in their written opinions. On the one hand, the elimination of discrimination based on gender, race, ethnicity, and religion is of course critical, and a predominantly all-white male Supreme Court involves insufficient diversity benefits. On the other hand, just as Obama and everyone currently sitting on the Supreme Court do not deviate too far from preserving heavy power in government, corporations, and the wealthy, it does not appear that Sotomayor will be any different in that regard, particularly if the claim is true that she has not deviated much from stare decisis coming from her own Second Circuit.

It seems that Obama engaged in a well-choreographed, tightly-controlled search for and announcement of Justice Souter's replacement, rather than risking the appearance of dissent among the more liberal organizations and individuals who backed and donated to his presidential campaign. In a democratic and open government, I would wish to see all presidents welcome real public input before making a final Supreme Court nomination. Hope springs eternal.

Here are some additional items and links to consider:

- I doubt Judge Sotomayor will be a good enough friend to free expression, and plan to review her opinions in this area. For instance, as addressed by a great First Amendment lawyer I know, her opinion in Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006). -- rejecting vagueness and overbreadth challenges to a parole condition banning possession of "pornographic material", when "pornographic material" is not a term of legal art -- gives cause for pause about whether she has a sufficient grasp of the First Amendment and related court opinions to sufficiently protect First Amendment rights.

- Sotomayor is a former prosecutor. She apparently has never represented a criminal defendant, and it appears that she has never represented an individual as a client, beyond any claim that crime victims are the clients of prosecutors. SexCrimes says she did not favor criminal defendants much more than her peers in 2008; that leaves her other years on the bench to examine.

- Here is a May 27, 2009, New York Times overview of some of Judge Sotomayor's "notable" court opinions and articles.

- Jonathan Turley likely will provide important reading throughout the confirmation process.

- Sentencing Law and Policy posts some links on Judge Sotomayor.

- Crime and Consequences addresses Judge Sotomayor's treatment of the AEDPA.

- TalkLeft repeatedly blogs on Judge Sotomayor. Jon Katz.

If a cop is going to arrest a reporter and news camera operator for covering something as non-political and non-controversial as an overturned truck from the opposite side of the highway, imagine what the same cop will do under the cover of the night passing by people doing "oink, oink" pig sounds. That is, unless the cop gets demoted to a desk job.

Former El Paso police sergeant Raul Ramirez went on a power trip last April, manhandled the reporter and cameraperson, and arrested them, while letting the onlooking civilians to continue to watch the scene. His misdeeds were caught on camera and audio. How many people has he manhandled worse when he thought nobody was videotaping, watching, or witnessing?

Mr. Ramirez was demoted over a previous police abuse incident. For his mistreatment of the reporter and cameraperson, the police chief this month concluded that he "somewhat overreacted." Is that not like being a little bit pregnant?

The First Amendment guarantees press freedom and freedom of expression. Raul Ramirez either did not know that, did not give a crap, or both.  Were the police not here for the purpose of serving the public, rather than the other way around?

What juror who sees the above-posted video of this incident is not going to downgrade his or her reliance on the truthfulness and judgment of Mr. Ramirez next time he testifies?

Isn't this video enough to convince many more people finally to join my call to shrink and improve the police function and the rest of the criminal justice system, by legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentencing, eliminating the death penalty, and eliminating per se rules of intoxication based on minimum blood alcohol levels? I'll drink to that. Jon Katz

ADDENDUM: Of course, the recently-revealed Birmingham, Alabama, police brutality tape is even more stomach turning.

Daniel Crabtree was found in violation of federal probation in part based on audiotapes that his girlfriend surreptitiously recorded of Crabtree's phone conversations with others.

Two days ago, the Fourth Circuit reversed Crabtree's probation violation ruling, writing in part that: 

"In our view, the issue is resolved by the language of [18 U.S.C.] § 2515 itself. Section 2515 states, in its entirety, that 'Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.' 18 U.S.C.A. § 2515. The statute seems to clearly and unambiguously prohibit the use in court of improperly intercepted communications; we simply see no gaps or shadows in the language that might leave lurking a clean-hands exception. Because the statute is clear and unambiguous, our inquiry typically would start and stop with its plain language. See, e.g., Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54  (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." (citations and internal quotation marks omitted)).'"

U.S. v. Crabtree, _  F.3d _ (4th Cir., May 19, 2009).  Jon Katz

On May 8, 2009, the D.C. Circuit issued a detailed ruling on exemptions 1 and 3 of the Freedom of Information Act. Larson, et al. v. Dept. of State, et al.

Larson describes the two FOIA exemptions as follows:

"Exemption 1 protects matters 'specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . in fact properly classified pursuant to such Executive order.' 5 U.S.C. § 552(b)(1). Exemption 3 covers matters 'specifically exempted from disclosure by statute,' provided that such statute leaves no discretion on disclosure or
'establishes particular criteria for withholding or refers to particular types of matters to be withheld.' Id. § 552(b)(3)."

Larson (emphasis added).

The Larson FOIA litigation was filed because "plaintiffs in this case each independently sought information about past violence in Guatemala from government agencies pursuant to FOIA."

ADDENDUM: See my other FOIA blogposts here.

Larson upheld the trial court's denial of FOIA disclosure, summarizing its reasoning as follows:

"We affirm summary judgment for the defendant agencies, agreeing with the district court that the DOS responded appropriately to Holdenried’s request, that the affidavits of the NSA and the CIA were sufficient to support their reliance on FOIA Exemptions 1 and 3, and that in camera review was not necessary to reach this decision. The withheld materials at issue in this case are precisely the sort of documents and information intended to be protected from public disclosure by Exemptions 1 and 3. We deny the plaintiffs’ request for judicial notice of
articles relating to Guatemala and government secrecy because those articles are irrelevant to our inquiry; taking notice of them
would not affect our opinion."

The FOIA's language might put civil libertarian readers into ecstasy upon first reading it. However, court opinions over the decades show that the FOIA often does not deliver good results without needing lawyers to duke it out in court; and even then good results do not always come. The frequent need for FOIA litigation shuts out those who do not have the funds to pay a lawyer or the ability to find a public interest or pro bono lawyer.

Thanks to ACLU for uploading the recently released CIA torture memos.

As to the people decrying the release of the memos, particularly since J. Edgar Hoover reigned at the F.B.I., and to this day, the United States government has continuously abused its power and acted as if the government serves at its own pleasure rather than for and with the blessings of the governed. No matter any perceived or real harm from the disclosure of these memos, the alternative is worse: a government that arrogantly and unjustly operates too often in the shadows and in violation of basic human rights.

Thanks, President Obama, for releasing CIA torture memos.

Before my college sophomore year began in 1982, I started working at a small Brooks Brothers-type men's clothing store in Harvard Square. One of the two owners delighted in watching a boxing match between African-Americans, exulting at "two n-gg-rs" (his phraseology) "beating the crap" out of each other. This same co-owner hummed happily to EZ listening radio; praised Richard Nixon as one of the best presidents; and told me of displaying a handgun to a demonstrator ready to throw a rock through his store's window in the Sixties. I let him know of my displeasure over his bigotry, but took too long to let him know that directly enough.

Then, one day a browsing man left the store, and the co-owner had some choice and sharp words. He said the man was Daniel Ellsberg, whose face I did not know, but whose name I did. He was angry.

He probably was not the only person angry about Ellsberg; I certainly have been happy about Ellsberg's leak of the Pentagon Papers. Ellsberg's felony prosecution over the leak was dismissed over government misconduct in 1973, perhaps speeding along Nixon's downfall all the faster.

Now, former Justice Department attorney Thomas Tamm waits to see whether he will be prosecuted over his courageous and commendable 2005 leak to the New York Times over warrantless White House-directed surveillance of Americans' phone calls and emails with people abroad. His chances of a prosecution might be lower with the January 20, 2009, White House changing of the guard, but he still remains very preoccupied over the possibility of a prosecution.

Thomas Tamm prosecuted for around two decades into the late 1990's in the county where I live and work, Montgomery County, Maryland. We never had a case together, in part because I was mainly defending in other parts of Maryland until becoming my own boss in 1998. He then moved to Janet Reno's Justice Department, and stayed when George Bush, II, took the reins. Tamm comes from a family including numerous loyal FBI employees, and would sometimes crawl under J. Edgar Hoover's desk as a toddler.

In 2007, Tamm's family suffered a multitude of cops bursting into their home late at night (which is cops' often preferred time to execute search warrants, to catch people sleeping and by surprise), which hopefully Tamm recognizes is the fate that so many of his opposing criminal defendants have suffered. However, was the judge who authorized the search warrant of Tamm's home justified in doing so? Apparently not until Obama's election victory did Tamm come public in late 2008.

No matter one's views of Democracy Now's Amy Goodman, she is a captivating speaker and interviewer, as reconfirmed this morning in her interview of Tamm. People can try to call Tamm a Bush II hater all they want and theorize a trail from him to the Democratic National Committee, but this is a man who proclaims to this day his strong belief in the role of prosecutors, while insisting that law enforcement and prosecution be done honestly and cleanly. Talk about a speech that he hopefully will present to every prosecutor.  

Today, Tamm was awarded the Ridenhour Truth-Telling prize, whose website gives a further rundown of Tamm. By the way, Daniel Ellsberg is a recipient of the Ridenhour Courage Prize.

As the Ridenhour Prize's website reports: "In 1969, Vietnam veteran Ron Ridenhour wrote a letter to Congress and the Pentagon describing the horrific events at My Lai – the infamous massacre of the Vietnam War – bringing the scandal to the attention of the American public and the world." Ridenhour's letter to Congress is here. I have written about My Lai here and here.

People can rant and rave all they want against such whistleblowers as Ellsberg and Tamm. However, the federal government is too overly powerful as is. Such power corrupts. We need more whistleblowing Daniel Ellsbergs and Thomas Tamms to help neutralize abuses of power. 

Being American or lawfully-admitted to be in the United States does not involve an "American look" or a "documented look". One of the great things about the United States is that it has a great mix of people arrived or descended from around the world.

When cops and immigration agents hunt for people unlawfully in the United States, are they really going to do anything more sophisticated than question people who "look foreign" or "sound foreign" (remember, many citizens are naturalized and do not speak English as a first language, and even more lawful visa holders are in the same boat) or to pursue reports of reported or suspected immigration status from jails, arresting cops and probation agents?

Horrifically, in their overzeal to deport deportable people -- an overzeal that I look to President Obama to reverse -- immigration authorities are too often getting United States citizens deported, as well. This horror story does not even cover the probably larger number of non-U.S. citizens who likely are being deported unlawfully.

Not long after this horror story ran a few days ago, I came across fellow First Amendment lawyer Andy McCullough's blogposting about an overzealous sheriff and crew in Arizona who harass and terrorize "foreign-looking" people in a search for people who are not United States citizens and who are unlawfully in the United States. Aside from the injustice of such actions, the immigration laws are too complex for ordinary cops to be enforcing such laws. Immigration authorities violate enough rights and too extensively and deeply as is. We do not need non-immigration authorities messing up the Constitution even more.

President Obama, you promised change during your campaign. Too many non-U.S. citizens have been victims of unjust immigration laws and unjust immigration enforcement for too many generations. The buck must stop here and now.  

ADDENDUM: The Arizona sheriff referenced above is Joe Arpaio. Here is an anti-Arpaio site. The Phoenix New Times compiles article on Arpaio here, and says:

"The self-described 'Toughest Sheriff in America' [Arpaio] has fostered horrendous jail conditions, reckless police operations, and carried out personal vendettas against political rivals and members of the press. In the last year or more, he has also appointed himself enforcer of the nation's immigration laws in Arizona, and a whole new series of problems has emerged. Foremost, he and his deputies have violated the Constitutional rights of brown-skinned U.S. citizens and have committed outright cruelty against the undocumented. This year, the U.S. Justice Department has commenced an investigation of his actions."

Curiously, the federal Freedom of Information Act ("FOIA") was not spawned by Watergate, but instead was passed in 1966, eight years before Nixon left the White House for good. Then again, I loved to hate Richard Nixon for surreptitiously taping conversations, but then learned that Lyndon Johnson showed Nixon how to use the already tape-rigged White House recording system.

HOLDER'S FOIA MEMO IS A CRITICAL ABOUT-FACE FROM JOHN ASHCROFT'S FOIA DIRECTIVE.

Thanks to fellow listserv member Derek Brett and the FOIA blog for covering U.S. Attorney General Eric Holder's March 19, 2009, FOIA memo, which directs federal agencies to act with a presumption that requested information be disclosed.

The day after being sworn in, President Obama issued a memorandum providing that: "All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.  The presumption of disclosure should be applied to all decisions involving FOIA." He directed "the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register."

On March 19, 2009, Attorney General issued a memorandum to federal agency heads, saying, in part:"[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law. With regard to litigation pending on the date of the issuance of this memorandum, this guidance should be taken into account and applied if practicable when, in the judgment of the Department of Justice lawyers handling the matter and the relevant agency defendants, there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information."

Holder's memo is a welcome about face from the state of affairs announced in John Ashcroft's October 12, 2001, FOIA memo issued weeks after the September 11 tragedy. Holder's memo "hereby rescind[s] the Attorney General's FOIA Memorandum of October 12, 2001, which stated that the Department of Justice would defend decisions to withhold records 'unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.'"

D.D.C. TREATS ONLINE-ONLY NEWSLETTER AS A MEMBER OF THE MEDIA UNDER THE FOIA.

Thanks to the FOIA blog for reporting on this week's D.C. federal trial court decision treating an online-only newsletter as a “representative of the news media" entitled to a waiver for search and copying fees under the FOIA. Federal Cure v. Lappin, __ F.Supp. 2d _ (D.D.C., March 18, 2009).

The First Amendment and the FOIA took effect before anybody knew about an Internet. How far will courts go in granting one-person blogging shows to receive the benefits of press protection under the First Amendment, news media representative benefits under the FOIA, and access to courts to challenge denial of press passes to government news conferences and other government events open to the news media?

Tonight, I heard from a death penalty abolitionist about the fast and furious pace of actions in the full Maryland Senate over efforts to repeal the death penalty. Some senators are proposing substitute provisions that will continue the death penalty and institute questionable safeguards against executing the innocent.

The only way to prevent the execution of the innocent is to abolish the death penalty. Voting on repealing or not repealing the death penalty may start as early as tomorrow, Wednesday, at 9:00 a.m. Please call and email your Maryland state senator now. Death penalty opponents: On this issue in particular, never give up; never give in.

Remnants of the confederacy are still heavily highlighted all over Virginia, which closes its courts and other government offices on Lee-Jackson day, has the miles-long [Robert E.] Lee Highway that stops just a half mile from Washington, D.C., has the confederate flag prominently displayed on many trucks, and has a confederate soldier statue standing guard outside the Loudoun County courthouse in northern Virginia, without a Martin Luther King, Jr., statue or anything else nearby the statue to promote a color-blind justice system. Virginians can warn me all they want that I will come across as a carpetbagger to complain about this state of affairs, but the discomfort continues as I recall the slavery, severe racism and Jim Crow that drenched the state's soil right into the 1960's.

Fortunately, offsetting the foregoing state of affairs is this week's Batson-reaffirming decision from Virginia's Court of Appeals. Hopkins v. Virginia, __ Va. App. _ (Feb. 17, 2009). In a cocaine distribution case, the prosecution exercised all its four peremptory strikes on African-Americans. The defense jusifiably brought a Batson challenge. and the prosecution said that two of the potential jurors were stricken for having had criminal records. The prosecution said that the remaining two of the potential jurors were stricken because they had family members charged with drug-related offenses.

However, seven potential jurors had family members charged with drug-related offenses. Only three of the seven were stricken for this reason, leaving four of that groups still on the jury. The trial judge rejected the Batson challenge. However, the Court of Appeals reversed, correctly concluding that the prosecution "did not explain its inconsistent treatment in light of the common stated reason applicable to African-Americans and non-African Americans... Thus "the reason asserted [was] not a satisfactory race-neutral explanation for the Commonwealth's strikes." Hopkins.

The Court of Appeals did right. Why did the trial court go wrong on Batson, though? Jon Katz

One day when I appeared in the U.S. District Court in D.C. before a judge who also is on the FISA trial-level court, I was dying to ask the judge about that thirty-year-old court, but knew that at best my questions would receive no answers, whether or not with a glare.

This week, we got a further glimpse of the workings of the secret U.S. Foreign Intelligence court system, through the release of a redacted August 22, 2008, opinion from the U.S. Foreign Intelligence Surveillance Court of Review, which acts as an appellate court over the trial level U.S. Foreign Intelligence Surveillance Court. This appellate case is so full of redactions that even its case title is redacted: In Re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act.

In Re Directives confirms a foreign intelligence exception to the Fourth Amendment, and permits the Bush II administration's rogue and rampant use of warrantless domestic governmental infiltration into emails and other communications believed to include participants from outside the United States.

On the one hand, it is better that the opinion was made public than kept secret. On the other hand, why did it take just one week shy of five months to release the opinion?

The Cold War national security police state mentality remains all too alive in the United States. Jon Katz.

ADDENDUM: Related to today's blog entry, check out Secrecy News, EPIC's FISA page, and FAS's FISA overview, 

United States Constitution (From public domain.)

How selfish or not was the late W. Mark Felt's motivation to help the Washington Post's Bob Woodward and Carl Bernstein blow the lid off the Watergate coverup right up to Nixon, to the point that Nixon was forced to resign lest he be removed from office by impeachment?

On National Public Radio this past weekend, Daniel Schorr -- who apparently was on Nixon's enemies list -- boiled Felt's motivation to two things: First, Felt -- who took three decades to admit he was the Deep Throat informer -- wanted to preserve the integrity of the Federal Bureau of Investigation. Second, Felt had been passed over by Nixon to succeed J. Edgar Hoover as head of the FBI.

Schorr's first point is tempered by Felt's 1980 conviction while Carter was president -- if he were indeed guilty -- for approving illegal "black bag" break-ins of the homes of suspected Weather Underground members, for which Reagan pardoned him five months later while the case was on appeal. Schorr says Nixon long suspected Felt of being Deep Throat, and NPR reports that Nixon supported Reagan's pardon of Felt.

If Felt approved such break-ins without judicial search warrants, did he do so on the orders or urging of a higher-up, or was this just business as usual at the time at the FBI that Felt was not going to stop? Was Felt a carbon copy of J. Edgar Hoover, who was no great friend of civil liberties, and did he just want to maintain FBI independence from the White House? In any event, this man who was convicted of one break-in helped blow the lid off a more monumental break-in.

Most likely because the radio segment was so brief, Daniel Schorr did not elaborate on how Felt was motivated by Nixon's not having him replace J. Edgar Hoover. Was Felt paying back Nixon? Was he in so much pain from not being elevated to the FBI's directorship that he was willing for Nixon to experience the profound pain that Nixon ended up experiencing? Would Felt have felt more loyalty to Nixon had he been made FBI director? Felt left the FBI in 1973, so his insider information ended or fizzled there.

Regardless of Felt's motivation, he did the nation a great service by revealing the cover-up to Woodward and Bernstein. However, we must remember that few battles for justice are between the extremes of black and white and pure good and pure evil. Power will be abused in and out of government as long as people have power. Moreover, too many Americans seem to thirst for a powerful America just to have a powerful America.

In the foregoing context, Ronald Reagan's overly-simplistic 1980 campaign message of making America great again rang strongly with many Americans who did not want to see America surrender any more wars after Vietnam and did not want to see presidents like Jimmy Carter restrain the military from very violently addressing such international "embarrassments" as the taking and lengthy keeping of American hostages in Iran. Probably in a proverbial game of chicken, the Iranian leaders recognized that Reagan was trigger-happy enough to invade Iran and possibly drop a nuclear bomb or more there if the hostage crisis were not dropped post-haste, which led to the Iran-Contra abuse and solidification of presidential power, but Reagan was into his final term once everyone knew about Iran-Contra.

George Bush I took over after Reagan, probably less from his own qualities than the robotic failure of Mike Dukakis to connect with the American people, as exemplified by his failure to even say during a debate who his heroes were. Of course, Quayle said his grandmother was his hero, because he underlined she taught him that you can achieve anything you resolve to achieve; how non-profound a reason to choose a hero. Of course, the nagging question remains of where was George Bush I during the Iran-Contra scandal.

Then came Clinton, who did not seem to be such a power-hungry paranoid as Nixon nor a Rambo Reagan. However, Clinton for the most part continued the status quo of the military-government-industrial complex. Then came Bush II, who used September 11 as an excuse to run roughshod over the Constitution, along with the excessive number of Congressmembers who let him do it. And he still got re-elected in 2004; then again, his opponent John Kerry did not do much to connect with voters.

Now comes Obama, who spoke loudly and amorphously of "change" during his campaign, and who has named a slew of establishment people to cabinet posts and other high-level posts who do not seem yet to offer much beneficial change from what the Bill Clinton administration offered. Like Bill Clinton, Obama is a lawyer and very bright, and probably well understands Constitutional law. How much will Obama protect the Constitution, including the Bill of Rights as it applies to everyone, including criminal defendants?

Unfortunately, until the economy heals much further, too many people are going to see civil liberties as luxuries that can take a back seat to the economy. However, anytime that civil liberties are permitted to be weakened, it takes much more struggle to revive them than the heavy lifting it already takes to expand and keep them going. .

Watergate made clear the absence of limits to the possible and actual abuses of governmental power, but by no means spelled an end to such abuses. The successes in reversing the Watergate nightmare will be of little use if we do not constantly, effectively, and thoroughly scrutinize the actions and abuses of power of everyone in government, from executives to their underlings, to legislators, to judges, and to the cops on the street, prosecutors in court, and jailers in the overpopulation of the nation's detention facilities.

For those, like I, who believe they are on the side of the angels fighting in court for criminal defendants, that client-by-client approach by itself will not secure civil liberties; constant vigilance over government actions outside the courthouses is also critical. Jon Katz

ADDENDUM: A quality video of Nixon's resignation speech apparently is not on YouTube, but can be found here. Dan Aykroyd could not have delivered a more surreal performance than Nixon during this video of final studio preparation for his resignation speech.