Monday, March 16, 2009

LTG 03-15-09: Jay Bilas, elitist five-head

(Published in the Omaha CityWeekly during the week of 03-15-09)

Yes, it’s true. March Madness can even affect your faithful Law-Talking Guy. So this week, in honor of the upcoming tournament, allow me to engage in a little lawyer-on-lawyer basketball conflict.

On ESPN.com, Jay Bilas, noted college basketball analyst, attorney, and Duke graduate, opined that the automatic bid rule should be removed from the process of selecting the 65 teams who participate in the men’s Division I college basketball tournament. For those unfamiliar with the process, 31 of the 65 teams in the tournament receive an automatic bid from their respective conferences, usually by winning a conference tournament at the end of the season. The remaining 34 bids are awarded by a committee tasked to choose the best remaining 34 teams in the country.

Of course, every year there is controversy about which teams were selected as one of the 34 at-large teams, and which ones were left out. Bilas argues that the controversy could be alleviated by eliminating the 31 automatic bids and having all 65 teams selected by a committee.

The basis of Bilas’ argument is that the automatic bid recipients are not necessarily the most “deserving” teams to receive an invitation to the tournament. Many of the automatic bids go to schools from very small conferences, and those conference champions have not assembled the body of work throughout the season to be competitive with schools from larger conferences. Therefore, Bilas argues, we should force all those schools to “earn” their way into the tournament.

Before proceeding to disagree vehemently with Bilas, however, I should note a personal bias. As a Creighton fan, I tend to favor schools from smaller conferences over mid-level schools from larger conferences. Having said that, this year Creighton did not get an invitation to the tournament in large part because teams such as Mississippi State and Cleveland State received automatic bids, stealing spots that most likely would have gone to the Bluejays. So I think I can speak with some degree of moral clarity on the issue.

The primary problem with Bilas’ argument is that it is based on a faulty premise. If we adopt Bilas’ premise, the tournament would be even more dominated by large-conference teams than it is now. Because there are so many teams in Division I college basketball, it would be impossible for everyone to play everyone else. Therefore, one of the primary tools to pick between teams is their strength of schedule. If two teams have equal records, it is more likely the team that played the tougher schedule will get the tournament invitation.

It’s a solid premise, but the devil is in the details. Large-conference teams will always have an advantage in strength of schedule based on the conference in which they play. Smaller-conference teams have to play tougher teams in their non-conference schedule to make up the difference. And the larger-conference teams have no incentive to schedule small-conference teams with any degree of fairness. A team like Creighton will never get a large-conference team to play the Bluejays unless Creighton agrees to give the large-conference team an unfair advantage, such as only playing at the large-conference team’s home gym, or playing once in Omaha and three times at the large-conference team’s gym, or being required to wear wooden shoes.

Bilas also argues that the automatic bid process hasn’t helped small-conference teams get better. He raises, in true lawyer fashion, the straw-man argument of the Hampton Pirates, who beat a two-seeded Iowa State team in a huge upset, but have done nothing since then.

I know, can you believe Iowa State was a two-seed at one point?

But Bilas conveniently ignores the smaller-conference schools that have gotten better – a lot better – over the last few years. Look at teams like Butler, or Gonzaga, that are teams from small-conference schools that have been able to increase their exposure – and therefore their recruiting ability – due to their regular entry into the tournament. Creighton’s gaudy attendance records come in large part from their ability in the past few years to get the national attention and exposure that comes from an automatic bid. For heaven’s sake, Memphis was last year’s national runner-up, a team that has built up their exposure and recruiting in no small part because of the automatic bid they are able to earn from their conference.

College football has figured out a way to keep a system in place that protects the large-conference schools and prevents small-conference schools from having any meaningful access to competing at the highest level. That’s bad for college football, but it’s very good for the large-conference schools, as it protects both their image and their revenue sources.

In college basketball, the scales are tilted already in favor of the large-conference teams, but at least the small-conference schools have a chance to compete. If we are going to consider rule changes, we should be looking to make the system more fair – like changing the rules to require large-conference schools to give small-conference schools a fair chance to play regular season games, or at least give small-conference schools credit for attempting to schedule those games.

Bilas’ proposal to eliminate the automatic bid tilts the process further in favor of the large-conference schools. It therefore makes the process less fair, not more. There is no one who doesn’t get a check from a large-conference school that thinks college football does things right in determining their champion. Why would we want to make college basketball more like the failed system of college football? I know you get a good education from Duke, but that’s pretty dumb.

LTG 03-01-09: The ex-enemy combatant

(Published in the Omaha CityWeekly during the week of 03-01-09)

When you’re in a situation that you have Federal criminal charges filed against you, and you feel like you’ve won, you know you’ve gone through the looking glass.

Last week, the Obama administration announced that Ali Saleh Kahlah al-Marri would be charged with providing material support for terrorism. If al-Marri is convicted, he would be facing a significant sentence in Federal prison.

Why is that important? Why would al-Marri be happy with this development?

Well, since 2003, al-Marri held the distinction of being the only person designated as an “enemy combatant” by the Bush administration detained on American soil. As you will recall, the Bush administration used the phrase “enemy combatant” to replace the much longer phrase “we can hold you in prison as long as we want without filing criminal charges or giving you a chance to challenge your detention in court.”

The Bush administration might have been lousy with Constitutional rights, but at least they were efficient with their language.

Keep in mind, al-Marri was a legal resident of the United States when he was taken into custody. Since 2003, a legal resident of the United States was arrested in America, held in jail in America, and according to the Bush administration, held in jail forever on nothing more than one man’s say-so.

If that doesn’t terrify you, then you aren’t paying attention. Because if the government can do that to al-Marri, there’s nothing that could stop it from doing the same to you, if it found you “dangerous” in some way. It’s straight out of the “Authoritarianism for Dummies” book.

And that’s why Obama’s decision to allow criminal charges to be filed is significant. Once criminal charges are filed, al-Marri ceases to live in this legal “enemy combatant” netherworld, and enters into the world of law. He has rights protected by the Constitution, and the opportunity for a fair trial.

You know, just that basic rule-of-law, foundation of freedom stuff that we say we’ve been fighting for. That’s all.

So this is a victory for civil libertarians and the Constitution, right? Well, as college football analyst Lee Corso might say, not so fast my friend.

See, by allowing criminal charges to be filed, al-Marri’s case now will not be heard before the Supreme Court. Any court can only hear a case where there’s an issue that needs to be resolved. In al-Marri’s case, he was asking the Court to require the government to file criminal charges so he could try his case. Now that the government has done what he asked, there’s no issue for the Court to decide. The issue is now, as the law-talking folks would say, moot.

But that also means that the Supreme Court will not get a chance to rule in al-Marri’s case as to whether the President actually has the authority to just wave a legal magic wand, declare someone an “enemy combatant,” and jail them indefinitely. And while al-Marri might be the only “enemy combatant” on American soil, there’s still plenty of them in Guantanamo Bay, Afghanistan, and other places around the world.

So, it could be that the Obama administration knew they had a loser of a case with al-Marri, and decided to give him his trial to prevent the Court from removing from the President the power to declare people “enemy combatants” – therefore preserving that power to hold all the other prisoners we have locked in our own version of the Phantom Zone.

I hope I’m being too cynical about this. Obama does seem committed to undoing the worst of the Bush administration’s power-grabs. He has announced that he is “reviewing” all of the policies currently in place. And, to his credit, he has announced that we will be closing the gulag – excuse me, the detention center – in Guantanamo Bay.

But we’re also keeping open the same kind of detention center in Afghanistan. And the Obama administration has supported the Bush administration’s expansive position that the “state secrets” doctrine can be used to prevent people alleging they were tortured by American officials from suing the government for their mistreatment. Plus, Obama has done everything he can to pour cold water on the idea of initiating criminal investigations to determine in American officials committed criminal actions with things like enhanced interrogation (torture), extraordinary rendition (kidnapping), and terrorist surveillance (spying).

Make no mistake, the Obama administration is a marked improvement from the Bush administration in terms of American dedication to the rule of law. And perhaps he is trying to be pragmatic, allowing some things he views as less important to go by the wayside to accomplish greater goals.

Maybe once the reviews are completed Obama will finish the job of restoring the rule of law to American policy. But for right now, I’d prefer change I can see to change I just have to believe in.

LTG 02-14-09: A-Roid

(Published in the Omaha CityWeekly in the week of 02-14-09)

Being a CityWeekly columnist gives you a number of perks. Getting free after-dinner mints from restaurants, for example, is very cool. But one of my favorites is the one I get to take advantage of right now. I am now officially the last person to weigh in on the Alex Rodriguez steroid story. When you get beat to the punch by both President Barack Obama and The Onion, you know you’re running behind.

For those of you who only get your news from the Law-Talking Guy (and God bless you for it), Alex Rodriguez, the third baseman for the New York Yankees, admitted last week to testing positive for an illegal performance-enhancing drug (PED) between 2001 and 2003. The testing was part of an agreement between Major League Baseball and the Players’ Association. The idea was to anonymously test major league players to see how many of them were using PEDs. If more than a certain percentage were using, then the Players’ Association would agree to implement drug testing for PEDs.

The key word there, of course, is anonymous. The whole reason the Players’ Association agreed to the “survey” was because there would be no danger of a particular player’s name being linked with PED usage.

Oops. So, if the testing was anonymous, how could A-Rod’s name be definitively linked with a dirty test sample?

(Sorry, I know “A-Rod” isn’t proper AP style for a second reference to Rodriguez, but it just doesn’t sound right to not refer to A-Rod by his incredibly-lame nickname. Chalk it up as another CityWeekly perk. Take that, AP Stylebook!)

Well, there were a couple of interesting little subplots playing themselves out throughout this whole “survey.” First of all, the Players’ Association, who was rabidly determined to prevent any testing of the players at all, was trying to find enough players that gave false positive results to get the percentage under the magic number needed to trigger testing.

But in addition to that, the Federal government was conducting a criminal investigation into the use of steroids by athletes, particularly by Major League Baseball players. U.S. Attorneys, like many other lawyers, watch ESPN, so they knew that these tests were going to be conducted.

Now, keep in mind, using steroids and many other PEDs is illegal without a doctor’s prescription. And, last I checked, most doctors won’t write a prescription for “chronic left field power shortage.”

So, those U.S. Attorneys did what prosecutors do – went to a judge and got a subpoena ordering the Players’ Association to turn over the results of the “survey” to the government.

But wait, you say. That survey was supposed to be anonymous. The players wouldn’t have given those samples without that anonymity. How can the government do that?

Simple. The law doesn’t let you keep commission of a crime a secret. The mafia can’t prevent someone from testifying about one of their meetings because they all made the super-secret handshake sign beforehand to keep things quiet. The union was foolish enough to go forward with this “anonymous” survey to determine which of their members was violating Federal law, to do so knowing full well PEDs were the focus of some big-time Federal investigations, and to maintain records that could implicate specific players long enough to get stung with a subpoena.

If that sounds harsh, then I’ve done my job. For the last few years, baseball has been suffering from the fallout of the “steroid era,” where hallowed records are being made meaningless and the integrity of the game is called into question by its’ fan base.

And the primary place to lay blame for that is at the feet of the Players’ Association. For years, it was pretty obvious that baseball had a rampant PED culture. But the Players’ Association fought the battle successfully to keep any testing for PEDs out of baseball. They were, of course, successful in doing so, but the cost is staggering.

Compare, for example, baseball to football. The National Football League has a history with PEDs that is just as bad as baseball’s. And yet no one looks at the NFL as a league of cheaters. In large part, that’s because when the NFL’s PED problem hit the papers, they immediately instigated testing. Now, their fan base trusts the NFL to take care of whatever problem may exist. Whether or not that trust is misplaced is a legitimate question, but there is no doubt that the NFL enjoys a perception of trustworthiness that Major League Baseball does not.

And that’s because we spent the better part of a decade watching Mark McGuire’s arms swell like balloons and yet see no testing for PEDs in baseball. That happened solely because of the union’s short-term myopia. Yes, they kept testing out, winning a short-term battle. But in doing so, they’ve damaged the credibility of the sport for at least a generation, losing a much more valuable long-term war.

Further, in their zeal to fight a testing policy, they retained records incriminating individual players that they should have never allowed to be created in the first place. Doing so, particularly when you know or should have known that there are prosecutors trying to put people in jail PED usage, put the players in unnecessary jeopardy of being in A-Rod’s situation now.

There’s a lot of people that can be blamed for the creation of a steroid culture in baseball. But there’s only one organization – the Players’ Association – that bears primary responsibility for the cloud of suspicion the sport suffers under presently. The leaders of the Players’ Association are lawyers, who have proven themselves very good at contract negotiations. I wonder if they are just as good at malpractice defense.

LTG 02-01-09: Rove's contempt

(Drafted but not published in Omaha CityWeekly)

It’s the gift that keeps on giving.

On Super Bowl Sunday, when all the oxygen in the media world is taken up with whether the Steelers’ secondary can contain Cardinals’ receiver Larry Fitzgerald and trying understand the reasons for the demise of the Lingere Bowl, most people would think the Law-Talking Guy would be challenged to find a topic for this week’s column.

Nah.

Karl Rove, former political advisor to ex-President George W. Bush, will be recovering from his Super Bowl party by not appearing before Congress in response to a subpoena. This is interesting for a number of reasons, not the least of which is that there is a new administration in power (in case you hadn’t heard), and Rove’s protection for defying a subpoena is far more in question than it used to be.

Rove has been subpoenaed by the House Judiciary Committee to give testimony about the Bush-era Department of Justice, and whether attorneys were fired and people prosecuted to advance political goals. Of all the abuses of power the Bush administration is accused of – and has admitted to, in many cases – the perversion of the Justice Department might be the most far-reaching. While torture, unlawful detention, and warrantless wiretaps are frightening in and of themselves, infecting the Justice Department with blatant politicization threatens the fabric of our day-to-day legal system.

So it’s a big deal. Since the Democrats took control of the House in 2006, Rove has been subpoenaed to give testimony about his role in the Justice Department’s politicization. Rove has repeatedly ignored those subpoenas, based on advice from ex-President Bush’s counsel, Fred Fielding, to do so on the grounds of executive privilege.

Neat trick. Especially when ignoring subpoenas usually results in a stay at the Grey Bar Hotel until you comply with the subpoena. So how has Rove and other Bush administration officials gotten away with ignoring subpoenas up to this point?

Well, it helps when the guy who has stuff he doesn’t want you talking to Congress about is the President, and the guy he appointed is in charge of the Justice Department that enforces those laws. Then-Attorney General Michael Mukasey refused to enforce the subpoenas against Rove, even though Federal law says that the Attorney General shall enforce and prosecute failure to appear for a Congressional subpoena. “Shall” is one of those legal magic words that means there’s no wiggle room – the law says it, you do it, period – but Mukasey managed to avoid doing so anyway.

But Mukasey isn’t Attorney General any more. By the time you read this, President Barack Obama’s nominee, Eric Holder, will likely have been confirmed by the Senate and be the Attorney General. So it will be in his lap to decide what to do next.

Holder will first have to look at the executive privilege claim made by Rove and others. The executive privilege doctrine is, basically, the idea that advisors to the President should not be forced to discuss the contents of their advice. To do so, the theory goes, would mean that people might be uncomfortable giving advice to the President (if, for example, they were advising the President to unlawfully use the Justice Department as a tool of a particular political party, or some other ridiculous example), and the President would thus be denied effective assistance.

The privilege, which is like any other privilege such as doctor-patient or attorney-client, was first named by Dwight Eisenhower, although Presidents have been refusing to tell stuff to Congress since George Washington. The privilege was recognized by the Supreme Court in 1974 in U.S. v. Nixon. However, the Supreme Court held the privilege was “limited” and specifically found that it does not grant “absolute privilege,” meaning that there are going to be times when a person has to talk about advice to the President under oath.

Rove’s position, backed by Fielding’s argument, is that executive privilege covers everything, and is so sweeping that Presidential advisors are “constitutionally infirm” from testifying about anything. And if you’re struggling to see how someone could read a privilege that is not absolute to mean that Rove is “constitutionally infirm” from testifying, welcome to the club. It’s your turn to bring the cookies to the next meeting, though.

It seems all but certain that Fielding’s blanket immunity argument will be thrown out – likely laughed out – of court when it is finally challenged. That’s even more likely when you realize that Rove has consistently said the President never knew anything about what was happening at the Justice Department. Even at its’ broadest stretch, it’s hard to imagine how a privilege can cover information you didn’t give to the President. And that will make for some interesting drama once these cases wind their way through the system in a year or so.

It’s clear that Obama has little interest in pursuing the previous administration in any meaningful way. He and his advisors have gone out of their way to dodge any questions about whether anyone who participated in torture or illegal detentions – you know, war crimes – will be prosecuted. If he’s not going to go after government officials who literally broke the law and killed people, it’s unlikely that a contempt of Congress charge will excite them into action.

However, because these cases are proceeding in courts and through Congress, the Obama administration may have far less control over the outcomes than they do with the war crimes non-investigations. Could we be looking at a scenario where torturers get away scot free and folks involved with illegally politicizing the Justice Department go to jail?

In the words of Gov. Sarah Palin, you betcha. (See, I told you it was all about the gifts that keep on giving!)

LTG 01-17-09: Obama's response to torture

(Initially run in the Omaha CityWeekly in the week of 01-17-09)

As this issue of the CityWeekly hits the stands, the Obama administration has begun, and the George W. Bush administration has ended. But before we draw the curtain on Bush 43, there was a fascinating story that broke last week which deserve some attention. You’ll have to pardon me in advance if your Law-Talking Guy gets a little misty-eyed at the thought of not having George W. Bush to kick around any more.

Susan Crawford, a retired Federal judge and lifelong Republican, announced last week that she believe.

Why is this a big deal? Well, first of all, Mohamed al-Qahtani is the first active member of the Bush administration who has actually called the “enhanced interrogations” torture. And second, Crawford’s job is to decide who gets prosecuted in the military tribunal system. Crawford’s decision means that, whether or not al-Qahtani is guilty of the heinous crimes of which he is accused, he cannot be prosecuted. Why?

First of all, torture makes the prosecution of that prisoner in any kind of court almost impossible. Obama has made it pretty clear that Bush’s military commission tribunal isn’t long for this world, but it does seem like there will be some kind of special “national security court” apart from the standard Federal court.

Regardless of what is created, though, any prosecution requires some level of evidence to be produced against a defendant in order to win a conviction. The only evidence we’ve got against al-Qahtani is his confessions, and if we tortured him to get those confessions, then we can’t use them against him.

And it’s not because of some squishy-soft need to be nice to bad people. It’s because torture doesn’t work as an information-gathering tool. There is a broad consensus that when you torture someone, all you get is the answer that the person who is being tortured thinks you want to hear.

Look, if you did the things to me that you did to al-Qahtani, then I’m comfortably certain that I would admit to the assassination of Archduke Ferdinand and the start of World War I. Sure, I confessed, but it’s nothing that you could actually believe. Crawford talked about the things done to al-Qahtani, in combination, being life-threatening. The government had to hospitalize al-Qahtani because of their mistreatment of him. Twice.

And that’s really the tragedy of it all. I have no doubt that some of the people swept up by our government after 9/11 and detained at Guantanamo Bay are bad, dangerous people. And if our interrogation policy was run by adult professionals, rather than overgrown juveniles who watched one too many episodes of “24,” then perhaps we would be able to bring people like al-Qahtani to justice and uphold the very rule of law we claim to be defending.

Instead, we’re left with a mess. We’ve got people locked up with no real way to tell if they are actual bad guys or innocent victims. We’ve got people we suspect have done horrible things, but because of our criminally foolish torture policy, we can’t prosecute them.

And, by the way, when I say “criminally foolish,” I may not be speaking in metaphor. Torture is a war crime, and anyone who knowingly participated in or authorized torture could be charged with a crime under American law or under international law. The American government has prosecuted and jailed American soldiers in World War II for engaging in some of the exact same “enhanced interrogation” techniques authorized by Bush and executed by American soldiers in Guantanamo and other places.

Obama has been loathe to say whether his administration will open a criminal investigation about war crimes committed by the previous administration, but there are a number of prosecutors around the world who have already started that process. While I am not excited about the prospect of an international tribunal cleaning up America’s dirty laundry for us, I do think it is likely that some form of judge will ultimately be reviewing these questions.

Vice President Cheney said after 9/11 that we had to work on the “dark side” to keep the country safe. Ah, Mr. Cheney, you should have listened to what Jedi Master Yoda told a young Luke Skywalker in the swamps of Dagobah about the dark side.

“Once you start down the dark path, forever will it dominate your destiny. And forever will you answer to Congressional inquiries and look over your shoulder for indictments from international courts.”

Well, OK, that last part might be a little bit made up. But he would have said it if he was talking to Cheney, I’m sure.