What will happen to Julian Assange?

September 3rd, 2012 § 0 comments § permalink

What will happen to Julian Assange?

The founder of WikiLeaks, a non-profit that publishes information provided by international whistle-blowers, remains a de facto prisoner in the Ecuadoran embassy and a wanted man by the Swedish government related to sexual encounters taking place in 2010.

Assange challenged the Swedish-issued European Arrest Warrant while in London, but the Supreme Court of the United Kingdom dismissed all of his appeals on May 30, 2012.

Soon thereafter, Assange sought asylum with the government of Ecuador in their embassy in London. On August 16, 2012, the Ecuadoran government formally granted asylum to Assange.

However, the British government has not promised safe passage to Assange to Ecuador (there were even reports that the British threatened to storm the embassy).

Ecuadoran President Rafael Correa has indicated that Assange can remain indefinitely within the embassy, to avoid a British arrest should Assange exit the embassy to head to the airport, for example.

Even while Assange stays put in London, Wikileaks remains a busy organization. In February of 2012, the organization produced more than five million emails from the intelligence company Stratfor. And in July, Wikileaks produced more than two million emails from Syrian political figures.

Earlier this year, Assange also produced a web show called “The World Tomorrow.” Some of his guests have included Rafael Correa, Noam Chomsky, Tariq Ali and Hassan Nasrallah (the current leader of Hizbollah).

What will happen to Julian Assange? Based on his track record, it is likely he will emerge from this imbroglio in a stronger position than when he left it.

The court cases, his asylum, and stand-off at the embassy keep Assange and WikiLeaks in the news, animate his supporters, and characterize him as a David fighting several Goliaths.

He is almost certainly in contact with supporters all over the world (political and financial), and he now has time to plan his next move without worrying if he will be sent in hand-cuffs to a Swedish prison.

Assange has in many ways become more powerful than the governments seeking his criminal indictment. To date, he has defied the United States government by publishing more than 200,000 classified diplomatic cables; defied an arrest warrant issued by the Swedish government; and defied a court order issued by the highest court in the United Kingdom that he subject himself to extradition to Sweden.

And then, somehow, he was able to convince the President of Ecuador to allow him asylum.

Assange is a survivor, and he has clearly learned the art of knowing which governments and laws he can flaunt while avoiding serious backlash, or even assassination.

My guess is that he will end up, eventually, in Ecuador.

It’s time for a new way

June 17th, 2012 § 0 comments § permalink

It’s time for a new way. The old way is not working, and things are only getting worse. The old way is broken. The people need to fix things, or try something new, or both.

It’s time for universal, single-payer health care. Civilization has changed – countries are no longer kingdoms fighting for land, and they are no longer ruled by kings. Decent civilizations aspire to protect the well-being and health of their people to the best of their ability.

Every modern industrial economy has a universal health care system: everyone one but the United States. The result is a health-care system that is the most expensive in the world, yet is 50th in life expectancy. A single-payer system would save up to $570 billion in health care costs because it cuts out the administrative costs of an insurance company middle-man. What is so controversial about saving health care costs? What is so wrong about implementing a more effective way to provide health care services?

It’s time for new jobs. Young people, especially, are unemployed and drowning in debt. In the face of the greatest crisis since the 1930s, the government’s response has been weak and ineffective. There are no proposals for the creation of new industries, no proposals for sponsored work-programs to keep people employed, no proposals for grand infrastructure projects (the Hoover Dam was built during the Great Depression), no proposals for debt relief, and no proposals for reforming an economic system which has created massive “too-big-to-fail” companies and institutions that act with impunity. People live paycheck to paycheck, or drain their savings waiting for new opportunities – opportunities that never arrive because society has done nothing to permit their growth.

The economy will not magically rebound on its own. The economy was destroyed by banks and speculation. The only institution powerful enough to create an industry or a massive economic project is the government.

It’s time for a new way to elect leaders. The naked buying of political office through the private electioneering system becomes more obvious with each election cycle. Because “money is speech” and “corporations are people,” (Citizens United v. Federal Election Commission, 558 U.S. 50 (2010)), the individuals and companies with the most money get the most say in politics. Politicians, so dependent on campaign funding to remain in office, enact policies that protect the tiny, wealthy elite who fund their campaigns, all at the expense of the common good. The rest are completely shut out of government policy.

What good is a democracy that does not rule in the best interest of the people? What good is a government that does not adequately govern?

It’s time for a vision of a peaceful future. The current global economic framework is shaky at best, and falling apart at worst. Economies stagnate, or as in Europe, are approaching a crisis point; no one seems to know what to do. Environmental problems mount, the threat of climate change grows with each carbon molecule, political instability takes its toll in the Middle East and elsewhere.

Where are the leaders providing a vision of the future that includes healthy and sustainable economic development, technology in the service of the environment, and peace and commerce with all countries? Where are the leaders who will stand up to the fundamentalism, hatred, ignorance and greed within this country? The absence of a hopeful vision creates a vacuum that will be filled with the messages of bigots, tyrants and demagogues.

The people need a new way. The current way is a way that is not working. It must be fixed, or replaced, because in time it will completely fall apart.

Comar Law Film School Project

June 17th, 2012 § 0 comments § permalink

In conjunction with Randy Hall and the San Francisco School of Digital Filmmaking, Comar Law was the recipient of a 30 second advertisement designed to put Comar Law on the moving screen and help craft the message of the firm.

Comar Law‘s first foray into film – but definitely not the last.

On the quest for positive change

March 11th, 2012 § 0 comments § permalink

This website will be undergoing changes soon. I’ve had it up and running for about 14 months now, but am still experimenting with how to balance this site with my law practice.

After doing some thinking, it seems the most appropriate thing to do is to keep this site more active as a series of personal reflections about my journey as a lawyer committed to positive social change.

These are interesting times: a period of unprecedented material abundance, yet deep unhappiness. Technology has united the world, but capital and politics appear more eager than ever to keep the human race apart.

And smart, highly educated young adults find themselves without work, without purpose, and looking at a world that in many respects shouldn’t be so ugly.

I started Comar Law as a way of fighting back and championing what I see as a declining state of civilization. But I also started Comar Law as a way of providing meaning to my life.

As I get older, I realize that the quest for positive social change is also the quest for positive personal change. I want to live in a world where people take better care of each other and use their talents to inspire the best in human kind.

If this is the world I want, I realized that this is the journey I must walk as well.

Gandhi said this more eloquently: “Be the change you wish to see in the world.”

I believe fervently that while there is much out of place in this world, there is so much that is right — so many accomplishments that people have made in the name of social progress, even just in the last 100 years. Things like slavery, sexism and racism were tolerated for tens of thousands of years and are now considered rightfully repugnant. People died from diseases that are now easily prevented with a childhood vaccine.

In the face of so much progress, it would be a great shame for educated people to hold their hands up in despair at the current state of things. The battles that I think lie ahead — greater social justice, greater economic opportunities, technology in the service of the planet and not in the service of greed, and a more unified species that holds itself with dignity, compassion and civilization — are really the final stages of much greater struggles that have been already won. This is the last leg of a long marathon.

Can those who feel in their hearts — who know in their hearts — that a better world is possible give up now? Of course not.

I look forward to detailing my own journey on this blog. Happy Sunday.

Is war against the law?

February 24th, 2012 § 0 comments § permalink

(Cross-posted with COMAR LAW)

Is war against the law?

On its face, the question seems almost preposterous.

The United States has been in at least two wars in the last 11 years, and several other military actions.

But the answer under international law is surprising.

A good argument could be made that war — or at least aggressive, unjustified war — is actually illegal.

Of particular relevance is an obscure treaty from the 1920s known as the Kellogg-Briand Pact.

The Kellogg-Briand Pact, also known as the “General Treaty for the Renunciation of War,” was an international treaty signed and ratified by almost every major nation, including the United States.

The terms of the treaty are plain. Article I of the treaty obligates every contracting party to renounce war as an instrument of national policy:

ARTICLE I

The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

Article II of the treaty obligates all parties to settle their disputes by “pacific means”:

ARTICLE II

The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

As of January 1, 2011, the United States still lists the Kellogg-Briand pact as a “treaty in force.” Under the United States Constitution, international treaties are the “supreme law of the land.” (Art. 6 cl. 2.)

The Kellogg-Briand Pact has been modified slightly by the United Nations Charter, which permits countries to use force in self-defense and where otherwise authorized by the United Nations Security Council.

Nonetheless, under theories of international law, signatories of the Kellogg-Briand pact – including the United States – risk liability should they go to war for improper reasons.

Indeed, the Nazi war crimes tribunal at Nuremberg described aggressive war as ”the supreme international crime” under international law. Nazi leaders like Hermann Goering were sentenced to death for planning, initiating and waging wars of aggression and other crimes against peace.

Development as freedom

February 22nd, 2012 § 0 comments § permalink

(Originally posted on Triplepundit on February 17, 2012)

The rich are getting richer and the poor are getting poorer, interest rates are high, stifling investment in new businesses.

What are the alternatives to our dysfunctional economic system?

Is it possible to identify new economic and social models that can act as rallying points for concrete social and political change?

People, rightly so, are scared of utopian visions of heaven on Earth. So let’s put utopianism aside.

No promises here of a communist or capitalist paradise.

Just some concrete thoughts on what people, good people who seek good change, can think about in creating effective strategies of progress.

My favorite model is based on the phrase coined by the Nobel-prize winning economist Amartya Sen: development as freedom.

For Sen, development is not just the reduction of poverty — it is the affirmative expansion of freedom.

Not simply political freedoms (which are important), but also social freedoms that bring about freedom from want or physical suffering.

As Sen puts it, development means “removing poverty as well as tyranny, poor economic opportunities as well as systematic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states.”

I like the concept of development as freedom for several reasons:

  • Development as freedom mirrors human rights law, specifically the two major human rights treaties enacted after World War II. The International Covenant on Civil and Political Rights (ICCPR) protects rights like freedom of the press, freedom of assembly, and the right to a fair trial. Meanwhile, a sibling treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR), requires countries to ensure their citizens can make a “decent living” (article 7) and have access to health care and education. Development as freedom asks people to respect both sets of rights. Freedom of speech means little if a person does not have the education to speak her mind; freedom to live without undue government interference means little if a person cannot stay healthy.
  • Development as freedom is adaptable. In these times of growing ecological stress, development as freedom means reducing carbon impacts and creating sustainable economic systems that can last more than just a few generations.
  • Development as freedom provides dignity to ancient cultures that today grapple with endemic poverty. The world will lose something if civilizations like India and China, thousands of years old, throw away the bulk of their collected social and cultural knowledge in order to carbon copy the development paths of the United States and Europe.
  • Development as freedom means there is work to do even in so-called rich countries. The consumer society in the United States has brought many luxuries, but it has destroyed communities, wrecked the environment, and isolated and atomized people to a degree never before seen in history. Development as freedom offers a way to look beyond physical luxury to those human needs that remain impoverished even in the midst of monetary wealth. No person lives on bread alone.

Ninth Circuit strikes down Prop 8

February 7th, 2012 § 0 comments § permalink

(Cross-posted with COMAR LAW.)

The United States Court of Appeal for the Ninth Circuit today affirmed the judgment of a federal trial court in striking down California’s same-sex marriage ban “Prop 8″. Perry v. Brown, No. 10-16696 (9th Cir. Feb. 7, 2012).

But the court refrained from deciding the broader question as to whether the Constitution requires that marriage be open to gay and lesbian couples.

Instead, the court decided the more narrow question whether Prop 8 violated equal protection of the law under the Fourteenth Amendment to the Constitution.

Under the Equal Protection Clause, a law that distinguishes people into different categories must have a rational basis to a legitimate government purpose.

In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court held that a law that serves only to discriminate against disfavored groups was not a legitimate use of state power. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633.

Romer involved an amendment to the Colorado Constitution that prohibited the state from enacting laws to prohibit discrimination against gays and lesbians. The Supreme Court struck down the amendment.

The Ninth Circuit relied on Romer in striking down Prop 8. ”The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”

Prior to Prop 8, the California Supreme Court had recognized that marriage was a fundamental right possessed by all Californias, straight or gay. Accordingly, when Prop 8 was passed, it put in place a new rule of constitutional law, the only effect of which was to deprive a targeted minority of rights they had possessed.

The Ninth Circuit looked at the four possible reasons offered for the legitimacy of Prop 8: (1) furthering an interest in childrearing and “responsible procreation”; (1) proceeding with caution in changing the institution of marriage; (3) protecting religious freedoms and (4) preventing children from being taught about same-sex marriage in schools. None of these goals were actually met by Prop 8, and could not act as a rational basis for the law.

In fact, the only effect of Prop 8 was to “withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of societal status that affords dignity to those relationships.” The effect of Prop 8 is “so far removed from these particular justifications that we find it impossible to credit them.”

The Court had the opportunity to discuss whether the Due Process Clause of the 14th Amendment to the Constitution provided a “fundamental right to marry” to which gay and lesbian couples were entitled.

It declined to do so, however, since its analysis only hinged on the purpose of Prop 8. “We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further we express no view on those questions.”

Appellate court says it will not intervene in military affairs

January 31st, 2012 § 0 comments § permalink

(This post is cross-posted with COMAR LAW)

Last week, the United States Court of Appeal for the Fourth Circuit (which hears appeals from Maryland, the Carolinas and Virginia) dismissed a civil case brought by Jose Padilla against Donald Rumsfeld and other Bush-era officials for alleged violations of law taking place after 9/11.  Lebron v. Rumsfeld, No. 11-6480 (4th Cir. Jan. 23, 2012).

Padilla, an American citizen, was labelled an “enemy combatant” by President George W. Bush and indefinitely detained for close to four years without trial until he was transferred into civilian custody in early 2006.

Padilla sued Rumsfeld and other officials for violating his constitutional rights, specifically:

  • Denying Padilla his right to counsel under the First, Fifth and Sixth Amendments;
  • Denying Padilla his right to access a court under Article III of the Constitution, the First and Fifth Amendments, and the Habeas Corpus Suspension Clause;
  • Subjecting Padilla to cruel conditions of confinement in violation of the Fifth and Eighth Amendments;
  • Subjecting Padilla to coercive interrogations (torture) in violation of the Fifth and Eighth Amendments;
  • Denying Padilla his freedom of religion under the First Amendment and the Religious Freedom Restoration Act;
  • Denying Padilla access to information protected by the First Amendment;
  • Denying Padilla his freedom of association under the First Amendment; and
  • Denying Padilla due process protected by the Fifth Amendment.

In a surprisingly broad decision, the Fourth Circuit dismissed Padilla’s claims because of concerns of interfering with “military affairs,” which the court stated were the purview of Congress and the President as Commander in Chief.  (Slip op., at 14-15.)

In the court’s view, Congress gave the President the ability to label American citizens “enemy combatants” in 2001, when it passed the Authorization of Use of Military Force after the 9/11 attacks.

Allowing Padilla to seek money damages for past constitutional wrongs would bring judicial review into “sensitive military decisions” made by the executive branch, which might burden future executives with the prospect of “civil litigation and potential personal liability.” (Slip. op, at 20.)

The court also expressed hesitation about interrupting the “established chains of military command” and “military intelligence” by permitting the suit to proceed. (Slip. op., at 22-23.)

The court surmised that people who wish to fight their enemy combatant status can do so through a habeas corpus proceeding. The fact that it took the Government almost four years to charge Padilla — an American citizen — with any type of crime did not affect the court’s calculus. (Slip op., at 17-18.)

The court also dismissed two related causes of action made by Padilla under the Religious Freedom Restoration Act and for declaratory relief.  ”Claims implicating national security and war powers flash caution signals all their own. Courts have long been reluctant to interpret statutes in ways that allow litigants to interfere with the mission of our nation’s military, preferring that Congress explicitly authorize suits that implicate the command decisions of those charged with our national defense.”

The effect of Lebron is that American citizens who may be innocently caught up in the paranoia of contemporary terrorism policy may be prevented from seeking monetary damages against the people who deprive them of their rights.

This “military affairs” exception to civil rights law is highly suspect, particularly in light of the fact that Padilla was seeking redress against the chief architects of his detention — people such as Donald Rumsfeld — and not the soldier at the bottom of the chain-of-command just following orders.

Shielding so-called “military decisions” from civil liability creates a perverse incentive for policymakers to claim a military logic to any decision that implicates constitutional rights in order to avoid future judicial inquiry.

If there’s any question that a policy is unconstitutional, just call it a “military decision” and the courts will stay out.

The Fourth Circuit has effectively said: “We will not review decisions made by Congress or the President that relate to military affairs.”

In an era when the line between military and civil domains continues to weaken and blur, the Fourth Circuit risks losing oversight of these political branches in chief areas of government activity.

By attempting to respect “checks-and-balances,” the Fourth Circuit may have done the exact opposite.

Police need a warrant to install a GPS tracker

January 24th, 2012 § 0 comments § permalink

(This post is cross-posted with COMAR LAW)

The United States Supreme Court has unanimously held that police officers need a warrant before they can monitor an individual with a GPS tracking device.  United States v. Jones, No. 10-1259, 565 U. S. ____ (2012).

The decision provides cautious optimism of renewed concern by the Supreme Court for 4th Amendment protections in the digital age.

In Jones, federal agents placed a GPS tracker under the Jeep of a DC nightclub operator who had suspected involvement in narcotics trafficking. The agents tracked the jeep for 28 days and generated over 2,000 pages of geo-location data.

Eventually the federal government indicted Jones. He moved to throw out the GPS data as the fruit of an unconstitutional search.

All nine justices agreed the use of a GPS tracker without a warrant was unconstitutional, but they disagreed why it was unconstitutional.

Writing for five of his colleagues, Justice Scalia argued the search was unconstitutional because “the Government physically occupied private property for the purpose of obtaining information.”  Such a “trespass” on property, combined with the search for information, would have been a search at the time the Fourth Amendment was adopted in the 18th century. Accordingly, the placing of a GPS tracker under a private vehicle for the purposes of gathering investigative data similarly required a warrant.

Justice Scalia acknowledged that his “property-based” analysis was an older approach to the Fourth Amendment, predating the modern test formulated in the 1967 case United States v. Katz.

Under Katz, a court ignores issues of property rights and instead examines an individual’s “reasonable expectations of privacy” in determining the appropriateness of Fourth Amendment guarantees. Justice Scalia argued that Katz augmented, but did not fully replace, the older property-rights based approach.

Four other justices agreed that the GPS tracking at issue was unconstitutional but disagreed with Justice Scalia’s reliance on a property-based approach to 4th Amendment protection. Writing for the concurrence, Justice Alito wrote that the Katz test remained the exclusive method of determining 4th Amendment protection.

Under Katz, Justice Alito concluded that “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”  The 4 weeks of monitoring was long enough to require a warrant.

In a third concurrence, Justice Sotomayor wondered out loud whether current Fourth Amendment jurisprudence can make sense of future technological developments.

This is an excellent question.

Neither test employed by the Court is well prepared for intricate technological fact patterns that are sure to emerge in the coming years.

In an age when people will be able to integrate communications technologies seamlessly into their lives — or even into their bodies — it is clear that modern societies may rest on fundamentally different assumptions than those that existed in 1789.

At some point, law will need to change to reflect this new reality.  The real issues will be:  (1) who will make those changes — nine justices? Congress? the states? — and (2) whether privacy is buttressed or sacrificed as a result.

Comar Law Year One Newsletter

January 4th, 2012 § 0 comments § permalink

Comar Law is proud to present its 2011 retrospective, and goals for 2012. Click below for the PDF file.

Comar Law 2011 Restrospective

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