Posted by WLS:

Having read Judge Walker’s opinion last week in which he determined that the federal common law “state’s secrets” privilege was abrogated by Congress with its passage of FISA, it occurred to me that there is a fairly simple hypothetical which can be used to explore the view that FISA is an unconstitutional encroachment on the Article II “Commander in Chief” powers of the US.

Lets assume that the Clinton Administration hadn’t been so feckless in its closing months, and that after the bombing of the USS Cole it had followed the advice of Richard Clarke, sought an authorization to use force against Bin Laden, AQ, and the Taliban, and initiated offensive military operations — of whatever type — in Afghanistan for the purpose of dislodging Bin Laden and AQ.  

Lets next assume that part of the offensive operations was an aggressive intelligence collection effort conducted by NSA and DOD which focused on communications between Bin Laden and other AQ actors in Afghanistan on the one hand, and the loose net of affiliate organizations around the world on the other hand.

Lets next assume that the Bush Administration kept the same policy following the election, and remained on the offensive against Bin Laden and AQ, short of an all out invasion of Afghanistan.   That during this effort the intelligence agencies were able to intermittently intercept cell phone transmissions believed to be from Bin Laden and other members of AQ’s leadership.  

We’re still talking about a pre-9/11 timeframe here, and from those interceptions intelligence analysts were convinced there was some type of plot underway inside the US, but the details were not yet known.  But in July 2001, interceptions established a contact between AQ in Afghanistan and Ramzi Binalshibh in Germany.  Binalshibh is identified by intelligence agencies as having been associated with a cell of Islamic radicals in Hamburg, one of whom is Mohammed Atta, who is found to be attending flight school in the US in the summer of 2001, with travel records from various intelligence agencies showing they had traveled to Afghanistan together in 1999.

So, based on this information, in July 2001, NSA and DOD begin intercepting all telephone communications of Binalshibh in Hamburg.  These interceptions are the direct result of battlefield intelligence obtained in Afghanistan, and the purpose is to seek to collect actionable intelligence which might be used by the military or civilian law enforcement to prevent an attack on US soil.

Under these circumstances, is the President’s Article II authority as Commander in Chief to be constrained by FISA if Binalshibh decides to call Atta in the United States?  Its not Atta’s phone that is being monitored — its Binalshibh’s phone in Hamburg.  Does the Executive, in the midst of exercising its war fighting authority, have to run to the FISC to obtain a warrant to continue listening to communications between Binalshibh and Atta? 

[posted by Justin Levine]

In light of the extremely disingenuous rulings from Justice Anthony Kennedy recently, it might be good to once again remind readers to try and seek out Jeffrey Rosen’s article from the June 18th, 2007 edition of the New Republic entitled “Supreme Leader: The Arrogance of Justice Anthony Kennedy”.

To my mind, it remains THE key analysis of Justice Kennedy’s style, and one of the best articles ever written on a sitting Supreme Court Justice.

Regretfully, the entire article no longer seems accessible on the Internet. But trust me, it is well worth seeking out in traditional print form. The entire article is pure gold, but some snippets can be found here, here and here. Many writers and commentators have recognized its significance  (with some quoting other parts of the article).

One of Kennedy’s former law clerks takes exception to the tone of the article - probably because even he suspects that Rosen is on to something here. Dorf is right in one sense - the article IS a personal attack, and a well justified one at that. If Rosen’s tone takes on the character of a personal attack, it is only because the tone of Kennedy’s opinions are personally offensive - much more so than the opinions of the consistently liberal Justices on the court which manage to be merely wrong as a matter of legal theory.

Kennedy has proven that he does not have the temperament worthy of the power afforded to those sitting on the nation’s highest court. I say this even though the practical results of his decisions will more often comport with my own views when compared with some other Justices of the Court. But if I had the power to vote one (and only one) Justice off the island, Kennedy would easily be the first choice.

[posted by Justin Levine]

In connection with the Kozinski controversy, the L.A. Times quoted two legal experts, Laurie Levenson of Loyola Law School, and Stephen Gillers of the New York University Law School.

Both are quoted often in the L.A. Times as experts on legal issues. Prof. Gillers specializes in legal ethics.

Since the time that Professors Levenson and Gillers were quoted, some new information has come to light concerning the material on Judge Kozinski’s server/website.

For example, I published a letter from Marcy Tiffany, the wife of Judge Kozinski, who argued that the facts were substantially different from what the L.A. Times had reported.

Certain aspects of her letter were corroborated by information in posts of mine, showing that the material described by the L.A. Times had a humorous component that the paper did not sufficiently describe. (See here, here, here, and here.)

I decided to send Professors Levenson and Gillers links to this material, and ask them whether the new developments have changed their mind.

For her part, Prof. Levenson decided to “defer to the Third Circuit committee investigating this matter for further comment.”

Prof. Gillers gave me a full response, asking only that I publish his remarks in their entirety. (I would have anyway.)

Prof. Gillers’s remarks are very thoughtful. The highlights are as follows:

• Prof. Gillers does not believe that Judge Kozinski needs to be disciplined in connection with this controversy.

• Although he believes Judge Kozinski could have judged the case fairly, Prof. Gillers continues to believe recusal was proper.

• Prof. Gillers says that, despite the fact that the material on Judge Kozinski’s website/server was largely intended to be humorous, many will still see that material as pornographic.

• Prof. Gillers continues to believe that Judge Kozinski was seriously negligent in allowing the public to access the material. Although Prof. Gillers does not defend Mr. Sanai, Prof. Gillers rejects the view that Mr. Sanai’s actions were analogous to the burglary of a private study.

• Prof. Gillers continues to believe that Judge Kozinski is a “treasure” on the federal bench, and that opinion has not been shaken by this controversy. He believes that this incident will pass.

I encourage every reader to read Prof. Gillers’s remarks in their entirety. Visitors to the main page should click “more” to read them.

(more…)

An op-ed in this morning’s L.A. Times is titled Why Dirty Is Funny and begins like this:

When a federal appeals court judge who is presiding over an obscenity trial is himself revealed to have a “porn stash” on a personal website, as happened a couple of weeks ago, some might get indignant. Others might titter. But what if it turns out that the judge in question, Alex Kozinski of the 9th Circuit court, is a connoisseur not so much of hard-core porn as of raunchy humor? That the stash was more about laughs than about titillation? Well, in that case, it’s a completely different story.

Indeed.

So I was driving home along the 110 Freeway tonight and, all of a sudden, I heard L.A. Observed’s Kevin Roderick talking about my blog on KCRW.

He even seemed to be saying nice things.

You can listen here. I can’t recreate the feeling of surprise, though.

Posted by WLS:

The majority opinion in Kennedy v. Louisiana (appropriate irony) authored by Justice Kennedy is a stunning exclamation point on the Court’s move this term of impose itself as the unelected sovereign dominant over all things eminating from the political branches of the various governmental entities of the United States of America.   This capstone sentence near the end of the opinion is all you need to read and absorb to fully appreciate the complete absence of guiding constitutional principle underlying the liberals+Kennedy with respect to their view of their place vis-a-vis the  representative democratic branches of the governmental units:  

“Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape.  Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense.  These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child.”

Got that?  The “propositions” mentioned are a variety of policy arguments, not one of which has any relationship to the language of the Eighth Amendment which prohibits “cruel and unusual” punishment.  No one “proposition” standing alone makes the death penalty for child rape “cruel and unusual” in a constitutional sense.  But all of them considered together do.  

Their “independent judgment.”   F*ck all those elected officials in whom the voters have vested the authority to exercise judgment on their collective behalf.  Frankly, I can’t believe no Justice in the majority suggested to Kennedy that he remove the “our independent judgment” language.   But, then again, maybe they wanted it exactly the way Kennedy wrote it — no time for subtlety.

A few of the more precious bon mots of enlightenment courtesy of Justice Kennedy:

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional committment to decency and restrait.”

“It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restrait in the application of capital punishment.”

“In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakish’”.

“Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

“The incongruity between the crime of child rape and the harshness of the death penalty poses risks of overpunishment and counsels against a constitutional that the death penalty can be expanded to include this offense.”

“It is not at all evident that a child rape victim’s hurt is lessened when the law permits the death of the perpetrator.”

“Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice.  The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the in the administration and enforcement of laws proscribing child rape.”

But, lest he be too solicitous of the child victim’s welfare, Kennedy next rips children as testifying witnesses:

“The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases.” (Citing the ever reliable National Association of Criminal Defense Lawyers brief.)

“In most cases justice is not served by terminating the life of a perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.”  

What a beautiful sentiment.  We as taxpayers pay hundreds of millions of dollars every year to incarcerate pedophiles so that they, with the help of the “system,” might finally understand the error of their ways.

What kind of society is it that wants to cut off such meaninful and important efforts at self-enlightenment by something so barbarian as imposing the death penalty on a man who raped his 8 year old stepdaughter so savagely that a laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus.

Fortunately for all of us, he might now get the help he was so obviously crying out for courtesy of the Louisiana prison system.

 **Update:  Barack Obama has come out against the Court’s decision today: 

“I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” Obama said at a news conference. “I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.”

I wonder if that means that Obama thinks Roberts and Alito are better models for future Supreme Court appointments than Ginsburg and Breyer? 

Will Justice Scalia author the majority opinion in the gun rights case?

That’s the speculation.

A guy can dream. But I think Allah has it right when he says:

What’s strange is that, per O’Shea, there’s likely to be a majority on the threshold question but then all kinds of splits within the court on the subsidiary questions — and Scalia, being more of an absolutist on this issue, is unlikely to represent the majority on all or most of those subsidiary questions. Roberts himself, or Kennedy, would seem to be a better bet. Is that a hint that maybe the Court’s not going to reach those subsidiary questions at all, and will content itself with a simple ruling on the individual rights issue?

That would be consistent with the recent Roberts Court pattern of deciding cases on the narrowest grounds possible.

[posted by Justin Levine]

This post is by guest blogger Justin Levine, and not by Patterico.

Due to the nature of my job, I get bombarded by various phone call inquiries and e-mails from PR firms trying to pitch guests for the show. I just got a notable pitch request that came across my in-box that I felt I had to share with you dear readers. I am omitting the name, phone number and e-mail of the contact person in order to protect the guilty (and to ensure that PR people can still feel comfortable pitching me submissions in the future - no matter what their perspective might be).

Text of e-mail [all links contained therein were provided in the original message that was sent to me]:

Subject: Story Idea Federal Judge Thinks Porn is Funny

Good Morning,

I was writing to let you know of an immediate media guest availability. Michael Leahy is an author and leading vocal critic of the porn industry and its effect on our country. Last week, a federal appellate judge was found to have uploaded explicit content on his website. He reportedly considers the content to be “funny.” A Nashville based action group is calling for Alex Kozinski’s resignation or impeachment. Michael Leahy weighs in on the controversy.

If you would like more information (more…)

[posted by Justin Levine]

In case you missed the Supreme Court decision in Dada v. Mukasey [PDF], Scalia puts on another clinic regarding judicial activism in his dissent.

There have been a lot of attempts recently to distort the meaning of judicial activism, or simply waive the phrase away as supposedly being ‘meaningless’ - but Scalia continues to point the way. (I would dare suggest that people have no real adequate response to Scalia’s challenge, thus they knowingly distort the meaning of judicial activism in order to muddy the issue.)

Admittedly, the issue isn’t always simple (particularly when trying to weigh straightforward textual solutions against non-textual, but long standing precedents) - but that is no reason to equate judicial activism with ‘any decision one happens to disagree with’.

As a starting point, judicial activism is:

(more…)

[by Justin Levine - not Patterico]

1. In looking over some of the actual material that was reportedly on Judge Kozinski’s site, I will confess that I had already seen at least half of these items on the Internet. Some of these items had been e-mailed to me. These are typical ‘viral videos’ that are shared by people with crude senses of humor (to which I plead guilty from time to time - it is how I have managed to maintain my radio job). I usually don’t save them on my own computer - but only because I generally know where to access them online. I have several friends who store this kind of stuff on their own computers. I’d just be curious to know if Kozinski had the 2 Girls 1 Cup video on his site. [Don't worry Patterico - I won't link to the video itself on this site without your express permission. ]

2. This admittedly is a legitimate story - but only because (more…)

Last night I spoke to Cyrus Sanai, the tipster for that L.A. Times article about the porn on Alex Kozinski’s web site. I called Mr. Sanai at the telephone number indicated for him on the California State Bar web site. I spoke to him for over two hours. During our conversation, Mr. Sanai e-mailed me images that he says he downloaded from Judge Alex Kozinski’s web site on December 24, 2007.

Mr. Sanai told me that the images he viewed were contained in a subdirectory located at http://alex.kozinski.com/stuff. That subdirectory, along with Judge Kozinski’s entire site, has been blocked to viewing by the public. But I have uploaded the images that Mr. Sanai sent me. You can view them in this post.

I warn you that many of these images are pornographic, perverted, and/or disturbing. You should definitely not view them while you are at work. Depending on your sensibilities, you may not want to view them at home.

Nevertheless, the images on Judge Kozinski’s web site are the story of the day, and I believe they are news. I believe that the only way for the public to evaluate them properly is to have the opportunity to look at them firsthand. Accordingly, I have uploaded some of these images to my site, so that interested readers can view them.

Let’s start with a couple of non-pornographic images. For most of the images, I will make you click a link to view them. Not this one. I found this image interesting:

The man on the right bears an uncanny resemblance to Judge Kozinski himself. [UPDATE: My guest blogger Justin Levine says it's not Kozinski. Justin says the picture is of a local radio team. Since Justin works in radio, I'm inclined to defer to him.] As to the question of whether the man on the left is using a real child to simulate fellatio by a young boy on a Catholic priest, I have no idea. [UPDATE: The consensus is unanimous that it's a rag doll that is part of the costume.]

I do know this: the picture above has echoes in another image that Mr. Sanai says came from Judge Kozinski’s site:

And now, for the more disturbing and/or pornographic images.

The L.A. Times article says: “Among the images on the site were a photo of naked women on all fours painted to look like cows . . .”

You may view that not-safe-for-work photo at this link. It depicts two naked women on all fours, painted as cows, viewed from the backside. Their genitalia, perhaps Photoshopped, are clearly visible in the picture.

The article says:

Among the sexually explicit material on his site that he defended as humorous were two photos. In one, a young man is bent over in a chair and performing fellatio on himself. In the other, two women are sitting in what appears to be a cafe with their skirts hiked up to reveal their pubic hair and genitalia. Behind them is a sign reading “Bush for President.”

“That is a funny joke,” Kozinski said.

If you really want to look at the explicit photo of the man performing fellatio on himself, you may view it at this link. And you can view the women exposing their genitalia in front of the “Bush for President” sign here.

The article says: “There was a slide show striptease featuring a transsexual . . .” Mr. Sanai sent me a lengthy, 40-slide slideshow quiz that purports to ask the quiz-taker whether a series of photographs depicts a male or a female. In each case, a naked picture of the person is revealed, showing graphically whether the person is male or female.

The entire slideshow can be viewed here.

The article refers to some material that Mr. Sanai was not able to provide, either because it was too voluminous, or because it was not on the site when he performed his Christmas Eve download.

For example, the article mentions “a video of a half-dressed man cavorting with a sexually aroused farm animal.” Mr. Sanai tells me that this video was not among the material he downloaded; a reporter at the L.A. Times told him that the video was something that the newspaper found on its own.

Because Mr. Sanai never saw that video, he could not tell me whether it was the video of an aroused donkey chasing a man, which I linked in my original post on this controversy.

The article also describes “a folder that contained a series of photos of women’s crotches in snug-fitting clothing or underwear.” Mr. Sanai was not immediately able to provide these images. He said he believes that he had videos depicting images like this, but that the folder of still images described by the newspaper was probably downloaded by the reporters and not by him.

Mr. Sanai said he downloaded a full CD of material from Judge Kozinski’s site, and that much of it consisted of videos that were too voluminous to download. He said that he would be willing to send me a copy of the CD in the mail. He told me that several news publications already had a copy. However, he said, many of the videos are too voluminous to send by e-mail.

For example, he said, there is a video of defecation. But the closest thing to an image of defecation was this joke image of a man defecating while bungee jumping:

As for alleged images of masturbation, Mr. Sanai said that there is a lengthy video of a woman in a car giving a handjob to a man. The video is titled “Best Woman Driver.” But, he said, it was too lengthy to send by e-mail.

Probably more disturbing than all the porn are the .mp3s. Judge Kozinski’s site had many .mp3 music files. If you do a Google search for http://alex.kozinski.com, page 2 of the results gives you this page. It includes a link to a site that shares .mp3 files, and which refers to the alex.kozinski.com/stuff subdirectory for a download of a Monty Python song. Mr. Sanai maintains that this, together with other evidence, is an indication that Judge Kozinski was sharing .mp3 files. This allegation will require further investigation.

There will be more to come on this story.

UPDATE: Much more material at this link.

[UPDATE: A commenter purporting to be Cyrus Sanai has left a comment to this post, with several other allegations against Judge Kozinski.]

[UPDATE: The commenter is indeed Sanai. He sent me images that he copied from Kozinski's site. I have reproduced them here.]

It has been revealed who tipped the L.A. Times about the porn on Alex Kozinski’s web site: Cyrus Sanai.

[Roger Jon] Diamond [defense attorney for obscenity defendant Ira Issacs] volunteered to the court that a Beverly Hills attorney, Cyrus Sanai, had recently called him and indicated he had a dispute with the 9th Circuit and knew about the material on the judge’s Web site.

“He called me to get my view and I said, ‘It’s not right, don’t do it,’” Diamond said without elaborating on what that attorney planned to do.

Sanai said in a telephone interview with The Associated Press that he informed the newspaper about the pornographic images on the judge’s Web site.

Sanai said he discovered the graphic material in December on Kozinski’s Web site, which he was monitoring as part of a long-running dispute he has with the 9th Circuit tied to his parents’ divorce case. After downloading the files, Sanai said he began contacting reporters at various publications in January in an effort to publicly expose them.

Sanai said he hoped disclosure of the material in the media would bring attention to what he called widespread ethical problems on the 9th Circuit.

The court “refuses to acknowledge the existence of judicial ethics,” Sanai said. “I expected people to be shocked and revolted.”

If that name sounds familiar, it should. Sanai is a lawyer who had a public dispute with Kozinski in which Kozinski ripped Sanai a new one. I posted about this in September 2005, in a post titled Ouch! in which I said:

Don’t cross Alex Kozinski.

. . . .

If lawyer Cyrus Sanai had much of a professional reputation before (which I doubt), it’s gone now.

I guess this is Sanai’s way of saying to Kozinski: don’t cross Cyrus Sanai.

Details in the extended entry.

(more…)