Articles Posted in due process

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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Edward Snowden and the Meaning of the Espionage Act Post 9-11

 

June 25, 2013

R. Tamara de Silva

The point of demarcation between speech, whistleblowing and espionage has in some instances the aspects of a razor’s edge.
Edward Snowden’s criminal complaint under the Espionage Act was unsealed last Friday.  The Espionage Act has only been used three times since it became law during WWI.  In just five years, President Obama has used it eight additional times to prosecute whistleblowers under an elastic and theoretically boundless definition of what constitutes national security.  Since 2009, the Espionage Act has been used against whistleblowers more than in all other Presidential administrations in the past 90 years combined.
Whether one thinks Edward Snowden is a traitor for exposing a clandestine wiretap dragnet of Americans and foreigners, or a patriot for exposing a truth that may not otherwise ever become known to his countrymen, is largely beside the point.  Snowden’s case reveals a lot more as we approach another Independence Day about how one day has changed our system of government.   The arguments advanced to suggest that the NSA’s powers are checked by two other branches of government, are largely specious.  What Snowden’s case reveals is the extent to which Americans gave the Executive Branch a blank check after September 11, 2001 and what that actually means for every American hereafter.

In the Inferno,
when Dante begins his entrance into the gates of hell, guided by no one less than the great Virgil, he comes across a bleak warning, lasciate ogne speranza, voi ch’intrate or, “abandon all hope ye who enter here.”  After 9-11, contrapasso to the United States Constitution,
as if capitulating to the admonishment that greeted Dante, Americans abandoned a measure of hope in America’s core values and founding principles.   A bi-partisan Congress signed the Patriot Act-in the absence of any public outcry, and almost no media attention or intellectual grasp of what it would actually mean. 

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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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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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A Tale of Two Classes of Defendant and Lanny Breuer

By R Tamara de Silva

January 28, 2013

 

“swaying power such as has never in the world’s history been trusted in the hands of mere private citizens,…after having created a system of quiet but irresistible corruption-will ultimately succeed in directing government itself.  Under the American form of society, there is now no authority capable of effective resistance.” 

Henry Adams writing about the corruption of the Erie Railroad for the Westminster Review in 1870, he described corporate influence growing to the point of being uncheckable with political parties that would sacrifice principle for accommodation.

 

       Last week, the Head of the Department of Justice’s Criminal Division, Lanny Breuer, announced his resignation.  His resignation is remarkable only in so far that it draws attention to the enormity of what he would not do.  Under Breuer’s watch, leaving aside some high profile and related insider trading prosecutions, not one senior Wall Street executive was prosecuted or even charged (by some accounts- not even investigated) with anything having to do with the worst financial crisis in American history-a crisis that resulted in a bailout of Wall Street banks and the financial sector at a cost to American taxpayers of between $43.32-$59.75 billion.[1]  A day before Lanny Breuer’s resignation, PBS’ Frontline aired an investigation about the failure of the Justice Department to prosecute a single senior banker involved in the mortgage crisis called, “The Untouchables.”  During this same time that the Department of Justice refused to go after a single head of a Wall Street firm,
they took a particularly hard line on a torture whistleblower (not the torturers), and many financial criminals responsible for not the billions caused by elite Wall Street firms but between thousands to hundreds of thousands like elderly couples for possible pension fraud, an appraiser in Florida, individuals who committed bank fraud by lying on mortgage applications and other criminals like pot smokers and Aaron Swartz.  It is not that I condone wrong-doing,
only a record of selective prosecution on steroids.  Lanny Breuer’s Justice Department exposed its full fury to the chubs of the criminal justice systems while systematically saving the titans and whales.

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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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Sackett v. EPA; Victory for Due Process and a Check on the Clean Water Act

By R Tamara de Silva March 21, 2012

Today the United States Supreme Court ruled unanimously in Sackett v. EPA (10-1062)[1] that Chantall and Michael Sackett may bring a Federal civil action under the Administrative Procedure Act (“APA”) to challenge the issuance of an EPA compliance order that had prevented them from building a home on their land. The importance of this ruling is that it constitutes a victory for due process for all Americans confronted by the EPA with crime.