Articles Posted in Bill of Rights

IMG_1241-300x200Sentence Before Verdict- Civil Asset Forfeiture Considered

by R Tamara de Silva

January 26, 2017

 

Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

`No, no!’ said the Queen. `Sentence first–verdict afterwards.’

`Stuff and nonsense!’ said Alice loudly. `The idea of having the sentence first!’

`Hold your tongue!’ said the Queen, turning purple.

`I won’t!’ said Alice.

`Off with her head!’ the Queen shouted at the top of her voice.

 

                                                      Alice’s Adventures in Wonderland by Lewis Carroll

 

Few things in the practice of law have struck me as more similar in practice to the Queen’s declaration in Alice in Wonderland than the often seemingly surreal practice of civil forfeiture. Not only when in instances that it goes awry but just even as a theory as it sits written into federal and state statutes -resting on the books yet so very much at odds even in written theory with the scant enumerated rights and protections that are our constitutional safeguards against tyranny. It was anticipated by some that the recent confirmation hearings of the new United States Attorney General would draw attention to the practice of civil forfeiture.  Mr. Sessions had previously defended the practice of civil forfeiture as it was used in Alabama in his tenure as a prosecutor there.

The practice of civil forfeiture provides that federal and state statutes allow the government to seize private property when that property is used in prohibited ways. Like so much in the law, the room for disaster lies in the application of what is subject to interpretation and by whom it is that is doing the interpreting.

Civil forfeiture originated in the laws of admiralty when ships carrying contraband were subject to seizure.  The cargo carried would be seized whether on port or on the high seas often of necessity outside of the presence of the ship’s owners who may have been in distant countries.  Forfeiture was later used in the area of border crossing during customs examinations starting in England in the 1700s and through the Act of Frauds.

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Proposition 8 at the Supreme Court-Marriage Equality -Part I

 

By R Tamara de Silva

March 27, 2013

 

       The Supreme Court has not delved into marriage lightly, tending to defer to state governments.  While marriage is one of the most democratic and universal states shared across almost all cultures,
socio-economic strata, ethnicities and religions, it remains withheld to one group in America.  In the United States, marriage is a legal contract that confers specific treatment in tax,
probate and property law. This week, the United States Supreme Court begins to consider the constitutionality of marriage between people of the same gender.  The first topic on marriage equality to be covered this week is Proposition 8 followed by the Defense of Marriage Act (“DOMA”) on Wednesday.  The Court may potentially decide whether one specific group of people can be treated differently when it comes to one right.  Perhaps it may even consider whether marriage is an unenumerated right.

 

 

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The President As Executioner; the Unconstitutionality of Targeted Killings of Americans on American Soil

By R. Tamara de Silva

March 6, 2013

 

       In the 2004 decision of Hamdi v. Rumsfeld, the Supreme Court of the United States reminded President George W. Bush’s administration that, “we are heirs to a tradition given voice over 800 years ago” by the signing of the Magna Carta and the idea insisted upon by the barons to their king, that his power and that of any subsequent executive would be confined to the rule of the law.  America was founded on this one idea above any other-that we are a country ruled by law as opposed to the historical alternative we had determined to get away from-the rule of men, unanswerable to law and capable of wielding power that would never be unchecked and therefore in its application, absolute.  So it was that American began-in a deeply held commitment to avoid tyranny.  A fair part of this stubborn legacy was set aside yesterday by Attorney General Eric Holder in a letter, which was released in answer to Senator Rand Paul’s questions about the Administration’s nominee for director of the Central Intelligence Agency, John Brennan.[1]  Mr. Holder’s letter dated March 4, 2005 stated that while very unlikely, the President, after conferring with him,
could kill an American citizen by drone even within the United States if he thought he must.  

       Mr.
Holder’s letter clarifies the White House’s position on the extra-judicial killing of Americans contained in what has come to be called, the Drone Memo.   I have written more extensively about what the Drone Memo means here.
The import of the Drone Memo is that a high ranking official of the Executive Branch can now kill an American if he deems that American a “continuing threat to the country.”
No actual evidence prior to killing is deemed necessary by the Drone Memo.  In fact, there need not be an imminent threat to the United States nor even, “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”[2]

       What Mr. Holder’s letter states is that it is within the sole power of the President to kill Americans on American soil, without providing them a trial, a jury, any due process, notice, or their death justified by the existence of any concrete and articulated standard.   Continue reading

What the Drone Memo Means

By R. Tamara de Silva

February 7, 2013

 

[W]e are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons’ insistence, confined executive power by “the law of the land.”  Justice Souter and Justice Ginsburg, Hamdi v.
Rumsfeld
542 U.S. 507 (2004)

 

       On February 5, 2013, a Department of Justice memo (“Drone Memo”) was released to NBC justifying the President’s killing of Americans by lethal force, such as by drones.[1]  The targeted killing of Americans as justified in this memo gives the Executive Branch a power over American lives that is at once unprecedented and terrifying in scope.   The idea of a government unilaterally assassinating its citizenry is fundamentally at war with America’s Constitutional legacy,
which was established with separate and equal branches of power specifically to limit the possibility of an abuse of government power or outright tyranny.  The issues presented in the memo have Constitutional implications that cease due process rights based upon what may be unsubstantiated accusations and go against traditions of justice dating back to the Magna Carta.  Americans need to understand what is at stake.
The Drone Memo justifies the assassination of Americans by the Executive Branch based on the equating of terror (a term and concept that is not defined in the memo) with war and making Americans into enemy combatants without any due process of legal proceedings for actions and associations that are similarly ill-defined.  This memo does outline an enlargement of Executive power over due process that is without historical precedent in American history.
It bears note, that the Drone Memo asserts for the first time in American history, the power of a President to assassinate Americans, unchecked and unanswerable to anyone, including the Judiciary and the Legislature.
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Prosecutorial Discretion,
Cambyses and Aaron Swartz

By R Tamara de Silva

January 15, 2013

 

The Optimist thinks this is the best of all worlds.
The pessimist fears it is true

J. Robert Oppenheimer

 

       The prosecutor of the late Aaron Swartz and Sisamnes have something to tell us about the purpose of those who have the awesome task of administering justice. The power of the prosecutor in modern times is absolute and as such unlike in the case of King Cambyses and judge Sisamnes, unchecked when it is abused.   All the more reason to ask at these times, what is the purpose of prosecution?  Is prosecution in all instances moral?
And is prosecution the same as justice?  In answer to the latter, in the case of Aaron Swartz, the answer is resoundingly in the negative.
The prosecution of Aaron Swartz may have followed the letter of the law and fit an omnibus catchall federal charge like wire-fraud, but it makes mincemeat out of Justice.  Aaron Swartz’s prosecution also highlights some of the many problems with our criminal justice system.

       One of the more memorable stories in the fifth book of Herodotus’ Histories takes place in the sixth century BC and it tells the fate of judge Sisamnes.  The Persian King Cambyses discovered that Sisamnes had diverted justice and rendered a verdict in a case based upon his acceptance of a bribe.  King Cambyses understood the majesty and power of justice and his retribution for Sisamnes’ abuse of it is unforgettable in its brutality.  King Cambyses had Sisamnes stripped of his flesh, while alive and used the strips of flesh to upholster the court’s judge’s chair.  But Cambyses’
retribution for the abuse of justice did not end there for he made Sisamnes’
son Otanes sit on the grisly judge’s chair as he was made the replacement justice with the lesson that he must always remember his father’s fate when administering justice.

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