Showing posts with label judicial junk. Show all posts
Showing posts with label judicial junk. Show all posts
Thursday, March 7, 2013
Saturday, February 2, 2013
Saturday 02-02-13
I heard they were defying the judical and not compiling,
3 Obama appointments fail constitutional muster
WASHINGTON – President Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board, a federal appeals court ruled Friday in a far-reaching decision that could severely limit a chief executive’s powers to make recess appointments.
The decision of the U.S. Court of Appeals for the D.C. Circuit marked a victory for Republicans and business groups critical of the labor board.
If it stands, it could invalidate hundreds of board decisions over the past year, including some that make it easier for unions to organize.
When Obama filled the vacancies Jan. 4, 2012, Congress was on an extended holiday break. But GOP lawmakers gaveled in for a few minutes every three days just to prevent Obama from making recess appointments. The White House argued that the pro forma sessions – some lasting less than a minute – were a sham.
The court rejected that argument, but went even further, finding that under the Constitution, a recess occurs only during the breaks between formal yearlong sessions of Congress – not just any informal break when lawmakers leave town. It also held that presidents can bypass the Senate only when administration vacancies occur during a recess.
White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the labor board would continue to conduct business as usual, despite calls by some Republicans for the board members to resign.
“The decision is novel and unprecedented,” Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.”
Under the court’s decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid.
The Justice Department hinted that the administration would ask the Supreme Court to overturn the decision, which was rendered by three conservative judges appointed by Republican presidents. “We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” the statement said.
The ruling also threw into question the legitimacy of Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, made on the same date, has been challenged in a separate case.
Carney insisted the court’s ruling affects only a single case before the labor board and would have no bearing on Cordray’s appointment. Obama on Thursday renominated Cordray for the job.
The case challenging the recess appointments was brought by Noel Canning, a Washington state bottling company that claimed an NLRB decision against it was invalid because the board members were not properly appointed. The D.C. Circuit panel agreed.
Obama made the recess appointments after Senate Republicans blocked his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.
But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called pro forma sessions.
The three-judge panel flatly rejected arguments from the Justice Department’s Office of Legal Counsel, which claimed that the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.
The court ruled that during one of those pro forma sessions on Jan. 3, 2012, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.
GOP House Speaker John Boehner welcomed the ruling as “a victory for accountability in government.”
If the ruling stands, it would invalidate more than 600 board decisions issued over the past year.
It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.
If Obama’s recess appointment of Cordray to the newly created consumer board is eventually ruled invalid, it could nullify all the regulations the consumer board has issued, many of which affect the mortgage business.
http://www.journalgazette.net/article/20130126/NEWS03/301269980
3 Obama appointments fail constitutional muster
WASHINGTON – President Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board, a federal appeals court ruled Friday in a far-reaching decision that could severely limit a chief executive’s powers to make recess appointments.
The decision of the U.S. Court of Appeals for the D.C. Circuit marked a victory for Republicans and business groups critical of the labor board.
If it stands, it could invalidate hundreds of board decisions over the past year, including some that make it easier for unions to organize.
When Obama filled the vacancies Jan. 4, 2012, Congress was on an extended holiday break. But GOP lawmakers gaveled in for a few minutes every three days just to prevent Obama from making recess appointments. The White House argued that the pro forma sessions – some lasting less than a minute – were a sham.
The court rejected that argument, but went even further, finding that under the Constitution, a recess occurs only during the breaks between formal yearlong sessions of Congress – not just any informal break when lawmakers leave town. It also held that presidents can bypass the Senate only when administration vacancies occur during a recess.
White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the labor board would continue to conduct business as usual, despite calls by some Republicans for the board members to resign.
“The decision is novel and unprecedented,” Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.”
Under the court’s decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid.
The Justice Department hinted that the administration would ask the Supreme Court to overturn the decision, which was rendered by three conservative judges appointed by Republican presidents. “We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” the statement said.
The ruling also threw into question the legitimacy of Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, made on the same date, has been challenged in a separate case.
Carney insisted the court’s ruling affects only a single case before the labor board and would have no bearing on Cordray’s appointment. Obama on Thursday renominated Cordray for the job.
The case challenging the recess appointments was brought by Noel Canning, a Washington state bottling company that claimed an NLRB decision against it was invalid because the board members were not properly appointed. The D.C. Circuit panel agreed.
Obama made the recess appointments after Senate Republicans blocked his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.
But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called pro forma sessions.
The three-judge panel flatly rejected arguments from the Justice Department’s Office of Legal Counsel, which claimed that the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.
The court ruled that during one of those pro forma sessions on Jan. 3, 2012, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.
GOP House Speaker John Boehner welcomed the ruling as “a victory for accountability in government.”
If the ruling stands, it would invalidate more than 600 board decisions issued over the past year.
It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.
If Obama’s recess appointment of Cordray to the newly created consumer board is eventually ruled invalid, it could nullify all the regulations the consumer board has issued, many of which affect the mortgage business.
http://www.journalgazette.net/article/20130126/NEWS03/301269980
Monday, July 18, 2011
Monday 07-18-11
Just can't make up the stupidity
After Jail Time for Contempt, Alleged Rape Victim Returns to Testify
It's already extremely hard for rape victims to come to court and testify. This alleged rape victim says the only reason she came back was to make sure this doesn't happen to anyone else.
This woman found the courage to come back to court and testify against one of the men who she says beat her with everything from a chair, to a two-by-four and raped her repeatedly before she found a way to escape from this Strasberg Street in Detroit.
That nightmare only continued at a Wednesday hearing , when she claims defense attorney Gabi Silver kept badgering her on the stand insinuating that she brought this attack on herself, causing this victim to snap in court.
"I said just get to the point bitch, it slipped out, it was inappropriate... all the bottled anger" says the alleged victim.
Without a warning, she says 36th District Judge Vanessa Bradley held her in contempt and ordered her to spend three days in jail.
After our story aired Wednesday, exposing what happened - the judge seemed to have a change of heart and released her a day early.
But to make matters even worse, she says her time in a holding cell was spent right next door to her alleged attacker who she says threatened her life, claiming the suspect who is still on the loose will come back and kill her. An investigation into this matter is underway.
In the end, the judge bound suspect Curtis King over for trial. The alleged victim says she's one step closer to justice, but she hopes no other rape victim will have to go through what she did to get it.
http://www.myfoxdetroit.com/dpp/news/local/after-jail-time-for-contempt%2C-alleged-rape-victim-returns-to-testify
Sometimes you can not make the stupid stuff they do and say up
DOJ: We can force you to decrypt that laptop
The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.
The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.
Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent.
In a brief filed last Friday, Fricosu's Colorado Springs-based attorney, Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files. "If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"
To the U.S. Justice Department, though, the requested court order represents a simple extension of prosecutors' long-standing ability to assemble information that could become evidence during a trial. The department claims:
Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.
Prosecutors stressed that they don't actually require the passphrase itself, meaning Fricosu would be permitted to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding "the password to the drive, either orally or in written form."
The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either approach. (A U.S. Justice Department attorney wrote an article in 1996, for instance, titled "Compelled Production of Plaintext and Keys.")
Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.
On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's mind, so why shouldn't a passphrase be shielded as well?
In an amicus brief (PDF) filed on Friday, the San Francisco-based Electronic Frontier Foundation argues that the Justice Department's request be rejected because of Fricosu's Fifth Amendment rights. The Fifth Amendment says that "no person...shall be compelled in any criminal case to be a witness against himself."
"Decrypting the data on the laptop can be, in and of itself, a testimonial act--revealing control over a computer and the files on it," said EFF Senior staff attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."
The EFF says it's interested in this case because it wants to ensure that, as computers become more portable and encrypting data becomes more commonplace, passphrases and encrypted files receive full protection under the Fifth Amendment.
Because this involves a Fifth Amendment claim, Colorado prosecutors took the unusual step of seeking approval from headquarters in Washington, D.C.: On May 5, Assistant Attorney General Lanny Breuer sent a letter to John Walsh, the U.S. Attorney for Colorado, saying "I hereby approve your request."
While the U.S. Supreme Court has not confronted the topic, a handful of lower courts have.
In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That's "protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination," the court ruled (PDF).
A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.
One argument published in the University of Chicago Legal Forum in 1996--constitutional arguments among legal academics have long preceded actual prosecutions--says:
The courts likely will find that compelling someone to reveal the steps necessary to decrypt a PGP-encrypted document violates the Fifth Amendment privilege against compulsory self-incrimination. Because most users protect their private keys by memorizing passwords to them and not writing them down, access to encrypted documents would almost definitely require an individual to disclose the contents of his mind. This bars the state from compelling its production. This would force law enforcement officials to grant some form of immunity to the owners of these documents to gain access to them.
Translation: One way around the Fifth Amendment is for prosecutors to offer a defendant, in this case Fricosu, immunity for what they say. But it appears as though they've stopped far short of granting her full immunity for whatever appears on the hard drive (which may not, of course, even be hers).
Fricosu was born in 1974 and living in Peyton, Colo., as of last fall. She was charged with bank fraud, wire fraud, and money laundering as part of an alleged attempt to use falsified court documents to illegally gain title to homes near Colorado Springs that were facing "imminent foreclosure" or whose owners were relocating outside the state. Some of the charges include up to 30 years in prison; she pleaded not guilty. Her husband, Scott Whatcott, was also charged.
A ruling is expected from either Magistrate Judge Michael Hegarty or District Judge Robert Blackburn.
http://news.cnet.com/8301-31921_3-20078312-281/doj-we-can-force-you-to-decrypt-that-laptop/#ixzz1SOS60QB8
"What is good for the goose is good for the gander" comes to mind or "turn about is fair play". Either saying is fit, it appears TSA does not like it when someone feels them up, but it ok when they do it.
Colo. woman accused of groping TSA agent in Ariz.
PHOENIX (AP) - Authorities say a Colorado woman who allegedly groped a female Transportation Security Administration agent at Phoenix's international airport is facing a felony count of sexual abuse.
Phoenix police say 61-year-old Yukari Mihamae is accused of grabbing the left breast of the unidentified TSA agent Thursday afternoon at an airport checkpoint.
TSA staff say Mihamae refused to be go through passenger screening and became argumentative before she squeezed and twisted the agent's breast with both hands.
Police were called and say Mihamae admitted grabbing the TSA agent and continued to argue with officers before she was arrested.
Maricopa County jail officials say Mihamae was released from custody Friday. They couldn't immediately provide any information about her case status.
Phoenix TV station KSAZ says Mihamae lives in Longmont, Colo., and is self-employed.
http://wtop.com/?nid=209&sid=2459067
After Jail Time for Contempt, Alleged Rape Victim Returns to Testify
It's already extremely hard for rape victims to come to court and testify. This alleged rape victim says the only reason she came back was to make sure this doesn't happen to anyone else.
This woman found the courage to come back to court and testify against one of the men who she says beat her with everything from a chair, to a two-by-four and raped her repeatedly before she found a way to escape from this Strasberg Street in Detroit.
That nightmare only continued at a Wednesday hearing , when she claims defense attorney Gabi Silver kept badgering her on the stand insinuating that she brought this attack on herself, causing this victim to snap in court.
"I said just get to the point bitch, it slipped out, it was inappropriate... all the bottled anger" says the alleged victim.
Without a warning, she says 36th District Judge Vanessa Bradley held her in contempt and ordered her to spend three days in jail.
After our story aired Wednesday, exposing what happened - the judge seemed to have a change of heart and released her a day early.
But to make matters even worse, she says her time in a holding cell was spent right next door to her alleged attacker who she says threatened her life, claiming the suspect who is still on the loose will come back and kill her. An investigation into this matter is underway.
In the end, the judge bound suspect Curtis King over for trial. The alleged victim says she's one step closer to justice, but she hopes no other rape victim will have to go through what she did to get it.
http://www.myfoxdetroit.com/dpp/news/local/after-jail-time-for-contempt%2C-alleged-rape-victim-returns-to-testify
Sometimes you can not make the stupid stuff they do and say up
DOJ: We can force you to decrypt that laptop
The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.
The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.
Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent.
In a brief filed last Friday, Fricosu's Colorado Springs-based attorney, Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files. "If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"
To the U.S. Justice Department, though, the requested court order represents a simple extension of prosecutors' long-standing ability to assemble information that could become evidence during a trial. The department claims:
Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.
Prosecutors stressed that they don't actually require the passphrase itself, meaning Fricosu would be permitted to type it in and unlock the files without anyone looking over her shoulder. They say they want only the decrypted data and are not demanding "the password to the drive, either orally or in written form."
The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either approach. (A U.S. Justice Department attorney wrote an article in 1996, for instance, titled "Compelled Production of Plaintext and Keys.")
Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.
On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's mind, so why shouldn't a passphrase be shielded as well?
In an amicus brief (PDF) filed on Friday, the San Francisco-based Electronic Frontier Foundation argues that the Justice Department's request be rejected because of Fricosu's Fifth Amendment rights. The Fifth Amendment says that "no person...shall be compelled in any criminal case to be a witness against himself."
"Decrypting the data on the laptop can be, in and of itself, a testimonial act--revealing control over a computer and the files on it," said EFF Senior staff attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."
The EFF says it's interested in this case because it wants to ensure that, as computers become more portable and encrypting data becomes more commonplace, passphrases and encrypted files receive full protection under the Fifth Amendment.
Because this involves a Fifth Amendment claim, Colorado prosecutors took the unusual step of seeking approval from headquarters in Washington, D.C.: On May 5, Assistant Attorney General Lanny Breuer sent a letter to John Walsh, the U.S. Attorney for Colorado, saying "I hereby approve your request."
While the U.S. Supreme Court has not confronted the topic, a handful of lower courts have.
In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That's "protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination," the court ruled (PDF).
A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.
One argument published in the University of Chicago Legal Forum in 1996--constitutional arguments among legal academics have long preceded actual prosecutions--says:
The courts likely will find that compelling someone to reveal the steps necessary to decrypt a PGP-encrypted document violates the Fifth Amendment privilege against compulsory self-incrimination. Because most users protect their private keys by memorizing passwords to them and not writing them down, access to encrypted documents would almost definitely require an individual to disclose the contents of his mind. This bars the state from compelling its production. This would force law enforcement officials to grant some form of immunity to the owners of these documents to gain access to them.
Translation: One way around the Fifth Amendment is for prosecutors to offer a defendant, in this case Fricosu, immunity for what they say. But it appears as though they've stopped far short of granting her full immunity for whatever appears on the hard drive (which may not, of course, even be hers).
Fricosu was born in 1974 and living in Peyton, Colo., as of last fall. She was charged with bank fraud, wire fraud, and money laundering as part of an alleged attempt to use falsified court documents to illegally gain title to homes near Colorado Springs that were facing "imminent foreclosure" or whose owners were relocating outside the state. Some of the charges include up to 30 years in prison; she pleaded not guilty. Her husband, Scott Whatcott, was also charged.
A ruling is expected from either Magistrate Judge Michael Hegarty or District Judge Robert Blackburn.
http://news.cnet.com/8301-31921_3-20078312-281/doj-we-can-force-you-to-decrypt-that-laptop/#ixzz1SOS60QB8
"What is good for the goose is good for the gander" comes to mind or "turn about is fair play". Either saying is fit, it appears TSA does not like it when someone feels them up, but it ok when they do it.
Colo. woman accused of groping TSA agent in Ariz.
PHOENIX (AP) - Authorities say a Colorado woman who allegedly groped a female Transportation Security Administration agent at Phoenix's international airport is facing a felony count of sexual abuse.
Phoenix police say 61-year-old Yukari Mihamae is accused of grabbing the left breast of the unidentified TSA agent Thursday afternoon at an airport checkpoint.
TSA staff say Mihamae refused to be go through passenger screening and became argumentative before she squeezed and twisted the agent's breast with both hands.
Police were called and say Mihamae admitted grabbing the TSA agent and continued to argue with officers before she was arrested.
Maricopa County jail officials say Mihamae was released from custody Friday. They couldn't immediately provide any information about her case status.
Phoenix TV station KSAZ says Mihamae lives in Longmont, Colo., and is self-employed.
http://wtop.com/?nid=209&sid=2459067
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