Recent Articles in Civil Rights & Privacy Law from LexMonitor

Mortgage Fraud Sends Defendant To Prison For 135 Months

cfpeterson@mac.com (Chuck Peterson) — Fri, 21 Nov 2008 19:43:07 GMT

If you think that white colar crime results in a slap on the wrist, consider the recent sentencing decision in a case of mortgage fraud, in Georgia. The Georgia United States Attorney reports that last week Adriene Newby-Allen was sentenced to 135 months imprisonment and ordered to pay $5,278,703 in restitution. Newby-Allen pled guilty in July to charges arising from a multi-million dollar mortgage fraud scheme. She was alleged to have conducted a mortgage fraud scheme from which she and others fraudulently obtained millions from mortgage companies through inflated mortgage loans obtained by straw purchasers, including her husband and another co-defendant. Newby-Allen herself received approximately $1 million in loan proceeds. She allegedly inflated the sales price of real estate and caused the submission of false loan applications and other documents. At the closings on the properties, Newby-Allen and her co-conspirators caused lenders through false representations to disburse millions to a shell company she created.

The use of "straw purchasers" is neither new nor unique to Georgia. In Idaho we have seen similar allegations in real estate and mortgage fraud cases in federal and state court. I represented clients this past year in a case that alleges the defendants used "straw purchasers" to obtain favorable loans from a local bank, hoping to quickly flip the properties and then pay off the loans from the profits. Trouble (in the form of civil lawsuits and criminal charges) usually follows such schemes. The declining real estate market left the "straw purchasers" holding the debts, even though they never intended to own the properties. My clients were not indicted but were actually victims of that scheme.

Consider the penalty imposed by the federal district judge in Georgia - time and money. Lots of time and lots of money, the latter of which the defendant likely does not have. The federal sentencing guidelines continue to guide the courts as they consider an appropriate sentence in any federal case. The amount of the loss is one of the factors used by the guidelines in calculating an appropriate sentencing range. What struck me about this case was the amount of time - 135 months. That is hardly a slap on the wrist. Eleven years sitting in a federal prison should give Adriene Newby-Allen ample opportunity to mull over the choices she made. Just so you know - she will likely serve ten years or more before any release - and that early out will only occur if Adriene Newby-Allen demonstrates good behavior. Look for similar fraud cases to come throughout the United States as the nation demands an accounting for white collar crime.

It goes without saying that if you are contacted by authorities wanting to know about any role you may have had with respect to a mortgage loan or banking transaction - get a lawyer immediately. There is no substitue for good counsel in such circumstances.

AZ-Sen, MN-07, SD-AL: Potential Obama Appointments And Their Electoral Ramifications

Fri, 21 Nov 2008 18:50:04 GMT

SusanG reported earlier, via the Washington Post, that Arizona's Democratic Governor Janet Napolitano is President-elect Obama's pick to serve as the next head of the Department of Homeland Security.

Napolitano is a solid pick on the merits, and should be easily confirmed. For party building, however, the pick is problematic for two reasons.

First, Napolitano is the front-runner for the U.S. Senate race in 2010, for the seat currently held by John McCain. She is probably the only candidate who can beat McCain head-to-head, and he has announced his plans to run for reelection.

With Napolitano in the race, it would have been one of the country's highest - profile races and a guaranteed barn-burner. Without Napolitano in the race, well, McCain's going to get a free ride.

Compounding this issue is that Napolitano vacating the governorship would make Arizona Secretary of State Jan Brewer - a Republican - the new governor.

This would be a serious problem, as it would give Brewer two years of incumbency before a prospective 2010 race with the expected Democratic candidate, Attorney General Terry Goddard. And with redistricting around the corner, holding the Governor's seat in Arizona is essential.

Several other rumored picks for Obama might be problematic in terms of long-term party building:

Republicans could gain another House seat in the 111th Congress — thanks to the newly elected Democratic president.

Barack Obama’s choice for secretary of Agriculture could take one Democrat from the 20-seat pickup the party gained by way of the recent elections. (Three House races have yet to be called and two seats in Louisiana will be filled on Dec. 6.)

According to reports, Obama is considering Reps. Collin Peterson (D-Minn.) and Stephanie Herseth Sandlin (D-S.D.) for the USDA post. His transition team declined to comment on Cabinet speculation.

Both Peterson and Herseth Sandlin hail from Republican territory. Peterson's district is the most Republican in Minnesota by PVI - even the Sixth District which reelected Michele Bachmann is less Republican than MN-07.

Herseth Sandlin's district, SD-AL, is even more Republican, with a PVI of R+10, though since it's a statewide "district" there is a greater number of strong Democrats who can potentially take the seat. Two of them include Senate Minority Leader Scott Heidepriem, and attorney Brendan Johnson (the son of U.S. Senator Tim Johnson).

It would be a pretty essential seat to hold, as SD-AL has been a pipeline to the U.S. Senate over the past two decades. Both the state's current Senators, Tim Johnson and John Thune, served as SD-AL representatives, as did the last two Senators from the state, Tom Daschle and Larry Pressler.

In fact, every elected Senator for the past sixty years from South Dakota has served in the House previously. So it's a pretty good bet that whoever holds SD-AL might end up in the Senate.

As for Peterson's seat, it will be extremely tough to hold if he leaves the House, but it's not a Senate pipeline like SD-AL.

Obama is obviously going to pick who he wants for Cabinet positions, and that's fine. It's perfectly well and good to pick current officeholders for the position as well. But hopefully he won't have to take too many more Democrats from vulnerable districts or states.

Also, as an indication that he really is interested in long-term party building, it would be great if he'd send out a fundraising email for Jim Martin, who's getting badly outspent in Georgia.

Update: In response to the Napolitano pick and the possibilities of Peterson and Herseth Sandlin, DavidNYC has put together a handy list of suggested appointments for the Obama administration here...

Media reaction to Waxman-Dingell?

Fri, 21 Nov 2008 18:05:28 GMT

Just prior to the vote on Joe Lieberman's Homeland Security chairmanship, the Washington Post's Chris Cillizza followed with a story that drew considerable notice for this quote:

Asked what it would mean if Lieberman kept his chairmanship, one Senate Democratic aide said bluntly: "The left has been foiled again. They can rant and rage but they still do not put the fear into folks to actually change their votes. Their influence would be in question."

It was a calculated statement, of course, and one that's as likely to have come from "one Senate Democratic aide" who works for Lieberman as anyone else. But what's interesting here was the credence the theory seemed to have among Conventional Wisdom watchers.

And it's plausible enough on its face, though I'd argue that the fact that a bunch of bloggers drove the Senate Democratic Steering and Outreach Committee to publicly announce its intention to hold a formal vote isn't exactly something to sneeze at. We fought, we lost. It happens. But our fights never used to culminate in votes of the Senate Democratic Caucus before.

The story made me curious, though, about whether we'd see similar reaction in the traditional media about the results of the other marquee committee leadership contest of the new Congress, the Waxman-Dingell match-up for the chair of the House Energy & Commerce Committee. There's been no shortage of coverage of the issue itself. And, of course, everyone covered the results. But where are the stories claiming that the defeat of the conservative wing of the House Democratic Caucus and their Blue Dog ringleaders represents a "foiling" of the right? That the Blue Dogs "can rant and rage, but they still do not put the fear into folks to actually change their votes? That their influence is in question?

I did find one such article, in The Hill, under the headline, "Waxman's takeover signals a shift to the left":

Centrists and adherents to the seniority system were left fuming that Dingell was unseated. Some said the political and personal wounds won’t quickly heal, especially as Dingell remains on the Energy and Commerce dais as "chairman emeritus."

"I think it was highly inappropriate. There was no obvious reason to make this change," said Rep. Rick Boucher (D-Va.), a Dingell whip and an ally on the measured approach to climate change. Another centrist Dingell supporter called the vote "an outrage."

Even a Republican, fellow Michigan Rep. Thaddeus McCotter, criticized Democrats for ousting Dingell. He noted that it came on the same day that a bailout for automakers collapsed in Congress.

[...]

Particularly upset were the conservative Blue Dog Democrats. One member said they were "in orbit — they think it’s a California takeover."

But I'm still looking to see if the national traditional media is going to make the same pronouncement, particularly about the Blue Dogs. All the telltale signs are there: inappropriate; outrage; upset; "in orbit"; fears of a "takeover." The sorts of things that could be expected to unleash a flood of traditional media tut-tutting about blogs and the unwashed masses they represent if it had in fact been the unwashed masses reacting in this way, win or lose. But instead it was a bunch of supposedly staid and dignified dudes in suits. Just as outraged and upset -- and just as surely defeated -- but somehow not subject to description as unhinged or marginalized.

Of course, the biggest difference is that at the end of the day, those guys are in Congress and we're not. But a loss is a loss is a loss. And whether it gets reported or not (though I'd prefer that it did), the fact that the Blue Dogs couldn't scare their colleagues into backing off of an agenda of change has to be counted as a good thing. Here's to many more votes just like it.

Post-Responsibility

Fri, 21 Nov 2008 17:11:38 GMT

In this post-partisan world, I know we're not supposed to be judgmental. But that darn GAC took a look at the billions spent by the Department of Homeland Security, and this (.pdf) is what they found.

Billions Invested in Major Programs Lack Appropriate Oversight

Of 48 major investments requiring milestone or annual reviews, 45 were not reviewed in accordance with the department’s investment review policy, and 18 were not reviewed at all. Four of these investments have transitioned into a late acquisition phase—production and deployment—without any required reviews. ... In addition, many major investments lacked required acquisition documents necessary to guide and measure program performance as well as inform the investment review process, such as program baselines and, of those, over a third had cost growth, schedule slips, or performance shortfalls from fiscal year 2007 through the second quarter of fiscal year 2008.

So, Homeland Security had jumped its internal rails, ignored all guidelines, and put billions into programs where we have no way of measuring success.

Still, even if they weren't following their own rules, shouldn't someone have been pulling them in for a stern talking to? Someone like, say, the Senate Homeland Security Committee and it's chairman Sen. Joseph I. Lieberman (Weasel - CT). As long as we're ignoring the thousand other good reasons why Lieberman should be losing his seat, it's nice to see that we're also past the idea of holding anyone accountable for performance.

Cooking the polls

Fri, 21 Nov 2008 16:15:04 GMT

So yesterday, in the midst of some friendly jousting between my friend Jerome Armstrong and I, he made a serious accusation against pollster Research 2000's daily tracking poll.

I will give R2K the "Zogby Award" for 2008. This is the award that goes to the pollster that, given the final result, is consistently off until the final days before the election, when they poll to make it more in line with the other poll projections. So congratulations, Markos, on your R2K success.

Let's look at the results, taking the results from 10/25, when the results were at its supposed "outlier" place, and the final one on 11/4 when the numbers had closed:

10/25 11/4

Obama McCain Other/Und Obama McCain Other/Und

DEM 88 7 5 88 10 2
REP 7 87 6 5 93 2
IND 50 40 10 49 46 5

Now remember that R2K never messed with their sample composition -- something other pollsters did to try and bring their results more inline with other pollsters (like Battleground which started with an almost even partisan breakdown, before pushing it out to more realistic numbers). So if R2K was going to cook its numbers, it couldn't do so by simply boosting the number of white respondents or kicking in more Republicans or whatnot.

To cook the books, it would have to tweak the poll results themselves. But look at the numbers above.

What we saw happen is that 1) Republicans came home. No one doubted this. While some Republicans flirted with the likes of Obama and Barr, at the end of the day, they came home to their nominee, and 2) undecided independents came in for McCain.

Actually, in the 10/25 sample, 4 percent of the "independent" sample chose Barr, suggesting strongly that many of those "Independents" were really disaffected Republicans running away from their party's shitty brand. By November 4, that Barr support had evaporated. That movement toward McCain was really Republican-leaning "independents" coming home to McCain as well.

So for Jerome to claim that Research 2000 cooked its numbers, he would have to suggest that those numbers and trends were really out of the ordinary -- that Republicans weren't squishy on McCain, and that they didn't come home to him the final days as everyone expected. Of course, that would be patently absurd.

Jerome was a big critic of this poll throughout its run, partly because it was so transparent that he (and others) could nitpick the internals to death (no other poll was this transparent, hence they were spared the extra scrutiny). And I know that it must kill my friend that despite his constant dissing of this poll, that it was among the best this cycle, and ultimately performed better than his so-called gold standards -- the Battleground Poll and Gallup.

Yet, while there may be plenty to nitpick about the R2K poll (its Latino sample was way too optimistic), fact is it did pretty well, and to claim without any evidence that it cooked its books -- a la Zogby -- is pretty ridiculous.

All that said, I'm willing to let Nate Silver adjudicate this friendly dispute.

What do you think, Nate? Did R2K cook its numbers?

Waxman's win leaves Gov't Oversight chair vacant

Fri, 21 Nov 2008 15:30:03 GMT

You can't chair two committees. Them's the rules.

So now that Henry Waxman has succeeded in wresting control of the Energy & Commerce Committee from John Dingell (a victory which Dingell has, in conciliatory fashion, congratulated Waxman), the chairmanship of the Oversight panel that Waxman led is up for grabs.

And even though the Waxman-Dingell contest appears to have undone the seniority system, it's alive and well in other quarters (and might not be as dead as all that, anyway, given that Waxman's hardly a newcomer to E&C). TPM is reporting that the chair of Oversight and Government Reform is likely to go to the next most senior Dem, Ed Towns:

We've now learned that Rep. Ed Towns of New York is the favorite to take over the House Oversight Committee chairmanship, as a potential rival has indicated he won't oppose Towns.

This is a sign that the new Dem-controlled government is taking shape in a mostly smooth fashion, sparing the House Dems another brutal internal fight after current Oversight chairman Henry Waxman ousted John Dingell from the Energy and Commerce Committee.

There had been press coverage and rumors that Rep. Elijah Cummings of Maryland might have run against Towns for the now-vacant chairmanship, but it looks like Cummings won't oppose Towns, after all.

"The Congressman has said from the start that he would be honored to serve as OGR Chair, but he respects that his CBC [The Congressional Black Caucus] colleague, Mr. Towns, is next in line," Cummings spokesperson Jennifer Kohl told Election Central.

No surprise there. The members of the CBC take the seniority system very seriously. It's as near a race-blind metric as has ever been used for these sorts of things, and at long last CBC members have done well by it. As a matter of principle, they continue to support it as against more subjective methods which would be more difficult to evaluate for bias, racial or otherwise.

It really would be rather unseemly for CBC members to have put in their time and be on the cusp of reaping their rewards, only to have the Democratic Caucus suddenly decide that seniority isn't really all that important after all. That'd be one hell of a can of worms to try to open. Any challenger to that order is going to have to confront that uncomfortable reality.

So as I said, no surprise that a challenge to Town is seen as unlikely, even if he isn't necessarily the first name that comes to mind when you're in the market for investigative pit bulls.

Senators Pay Tribute To Convicted Felon

Fri, 21 Nov 2008 14:45:03 GMT

Watch the U.S. Senate give convicted felon Ted Stevens a standing ovation.

And here's Harry Reid's contribution to the love-fest:

I rise to say farewell to our distinguished colleague, the senior senator from the state of Alaska. For Ted Stevens, public service has been more than a career. It's really been his life's calling.

Uh, Harry? Corruption is not a public service. Of course it's not too surprising that Reid would call a criminal a "distinguished colleague." After all, he calls Joe Lieberman a Democrat.

Musings Over Morning Coffee

Fri, 21 Nov 2008 12:40:44 GMT

Stories That Never Grow Old.

One of the remarkable things about this gap between when Obama won – an across the board rejection of Bush, conservative and Republican politics – and when Obama takes over is the fear it engenders in those with a stake in "more of the same". Guiltier than most is the media, who can't give up the old themes and haven't wrapped their heads around the new. The new is the public has other things on their mind, like the economy, foreclosure, health reform and why the Bush Administration can't just go away.

Here are some golden oldies that you don't want to hear again, but will anyway:

Unhealthy obsession with the Clintons.

When you don't know what to write about, write about Hillary. If that doesn't work, write about Bill. And if all else fails, write about how Bill affects Hillary. But enough about the Clintons. What do you think about the Clintons?

I think she'd make a terrific Secretary of State, but I'm getting tired of the ink wasted on whether she will or won't. The public really doesn't care, and wants to get on with it. But fact-checking and learning about the issues (this is your chance to study up, reporters) is hard, and it's so much easier to talk about the Clintons.

Republicans are united, Democrats are divided and in disarray.

You know, the Obama campaign was perfect, but the transition team? Making mistakes left and right (David Ignatius says so, so it must be true.) The Bushes, who did everything right, would never have made these mistakes. And whether they leaked names, of course, foreshadowed exactly how well they governed. It's got nothing to do with the talent of the names being bandied about.

Rejecting public campaign financing is TEOTWAWKI^*.

So 3.1 million donors to the Obama campaign doesn't represent change, and it doesn't represent what campaign finance reform really was meant to do. What's far more important is that for the first time in memory, Republicans were out-raised by Democrats. This is against the Natural Order of things, and must be reversed. Why the public doesn't seem to care a fig is just inexplicable.

Center-right. They keep using that word. I do not think it means what they think it means.^**

Every day in the Abbreviated Pundit, you can find some sad-sack right wing hack who is insisting that the huge across the board win wasn't really what it seems.The public wants Republicans to work with the new President, wants the GOP to be more inclusive and less conservative, and doesn't think Sarah Palin is qualified to be in the WH. So, the way to return to power for the GOP, they say, is to ignore the public, and purge the apostates. Good luck with that.

Well, having abbreviated the same pap day after day, I'm looking forward to some substantive discussion of where the country is at and where we are going. I'm not holding my breath, mind you. That will require hard work and focus. And so far, with some notable exceptions, the media pundits have not been up to the task.

Your Abbreviated Pundit Round-up

Fri, 21 Nov 2008 12:10:28 GMT

TGIF! Pundits love Fridays!

Paul Krugman: There are some disturbing parallels between 2008 and 1932, and one disturbing one is the gap between when the discredited Bush leaves and the new folks take over.

David Brooks:

And yet as much as I want to resent these overeducated Achievatrons (not to mention the incursion of a French-style government dominated by highly trained Enarchs), I find myself tremendously impressed by the Obama transition.

Jonah Goldberg: Hey, bankruptcy for GM isn't so bad. Better that than government pragmatism and confidence. The effects of that would be much more long-lasting.

Jay Cost: Watch me use statistics to prove that the 7 point (365-173 EV) Obama win was merely an illusion, and that the post-election polls – suggesting that (by 2:1) Republicans need to cooperate and not obstruct the new President – don't count.

Charles Franklin: Graphic demonstration of Obama improving over Kerry everywhere (all demographics) in all except a handful of groups, like "small town". And check out those first time voters. Call it the Obama effect.

Mark Blumenthal: On Nate Silver vs. John Ziegler/Zogby – it was not a push poll, but the whole exercise is awfully questionable.

David Corn: no drama Obama, meet the Clintons. Me? I'll pass.

And because it was too good to pass up, here's a revisit from yesterday:

David Ignatius: No matter how "big" this election was, never underestimate the ability of pundits like me to think small. So let's make this about (what I define as) the mistakes the Obama transition team is making, because we don't do substance. I mean, I like the guy, but unless he's what I define as perfect, he's toast. Why? Because it's up to the press to define these things. You can't leave it to the rabble. They won't notice all the mistakes, and won't care if they do.

And yet, after the public speculation, Obama will seem to be dissing Clinton and her supporters if she doesn't get the job. Here again, one sees a once-seamless team making little mistakes.

See? You need us to create some manufactured drama, and we've always got the Clintons. What would you do without us?

Open Thread for Night Owls, Early Birds & Expats

Fri, 21 Nov 2008 05:45:39 GMT

Had he lost this month's election to Bruce Lunsford, Mitch McConnell apparently was all set for a new career as a stand-up comedian. Because a good portion of his speech at the annual convention of the Federalist Society would have had any other group rolling the aisle. The FedSocs, however, took it all seriously. The part about how Barack Obama should be bipartisan, something McConnell has been so very good at. The part about how Obama should govern from the center, defined, of course, by McConnell and the crew that gauges the center with a heavy thumb on the scales. And the funniest part of all, about how Obama shouldn't appoint judges based on ideology.

Stephanie Mencimer at Mother Jones writes:

McConnell argued that Senate Democrats had completely distorted the confirmation process. He recalled that in 2001, two of Obama's legal advisers, the Harvard law professors Cass Sunstein and Laurence Tribe, suggested changing the judicial nomination hearing process to take into account political as well as legal philosophy. Much to his chagrin, he said, Sen. Charles Schumer (D-N.Y.) held hearings on the idea, including one titled, "Should ideology matter?"

At those hearings, McConnell claimed Schumer and other [D]emocrats said it would be important to have "ideologically moderate" judges on the bench, which McConnell took to mean judges who sympathized with certain groups rather than sticking to the law in front of them. He bashed Senate Democrats for holding up Bush's judicial nominees when Bush was doing nothing but sticking with the ancient criteria of ensuring that his nominees were competent and intelligent jurists. With a look of horror, McConnell quoted Ted Kennedy (D-Mass.), who said during the nomination hearings for Chief Justice John Roberts, "Whose side is he on?" (Of course, the Federalists and their Republican allies also ask that question of GOP judicial nominees, particularly on the issue of Roe v. Wade, but that, apparently, is not an ideological question but simply a legal one in this crowd.)

McConnell observed that Obama has said one quality he would seek in a judicial nominee is empathy, a view that McConnell derided as "unorthodox." He warned that Republicans would not sit quietly if Obama nominated judges based on ideology — i.e., which side they're on — as opposed to fealty to the law (at least the law as McConnell sees it). "We can't countenance a process where judges would favor one side in litigation," he roared.

He related this whole routine deadpan.

As if Ronald Reagan and George W. Bush did not spend their entire presidencies doing their utmost to pack the federal courts with extremist ultras, some of whom would, among other things, reverse decades of public interest legislation like child labor prohibitions, block environmental regulations as unfair "takings," reject civil rights not specifically spelled out in the Constitution, and generally rule in an "originalist," "textualist," or "strict constructionist" manner.

Looking ahead in 1988, an internal report of Reagan's Department of Justice report - The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation - stated:

There are few factors that are more critical to determining the course of the Nation, and yet are more often overlooked, than the values and philosophies of the men and women who populate the third co-equal branch of the national government--the federal judiciary.

As Dawn Johnson wrote in the August 2002 Washington Monthly:

To hear Republicans tell it, senators shouldn't take into account such factors as the details of one's judicial philosophy or views on particular legal issues. (If they do so, critics accuse them of "Borking.") Former Reagan and Bush administration officials Douglas Kmiec and C. Boyden Gray both testified to this effect last year before a subcommittee of the Senate Judiciary Committee. Gray put it most succinctly: "Should ideology matter? I can answer in one word: No."

Of course, ideology was precisely the reason GOP senators often gave for blocking President Bill Clinton's nominees, declaring them to be too "liberal." It is an odd sort of hypocrisy: President Bush recently renewed his pledge to continue to appoint "conservative" judges in the model of Justices Antonin Scalia and Clarence Thomas. What at least some Republicans seem to have in mind is a constitutional double standard that would allow only a Republican president to consider the views of judicial nominees--and not a Democrat-controlled Senate.

Obviously, it's not ideology per se that McConnell objects to in making court appointments. Just the ideologies that the Federalist Society members find objectionable. And when the approved FedSoc ideology that seeks a return to a pre-FDR view of government regulation combines with narrow corporate interests, the joke's on us.

As the Center for Investigative Reporting observed four years ago in Bush Judicial Nominees Bring Close Corporate Ties to the Bench:

The investigation reveals that more than a third of President Bush’s nominees to these federal courts – 21 of 59 nominations since 2001 – has a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries. Eighteen of the 21 have been nominated to the Appellate Courts in the 4th, 5th, 9th, 10th and District of Columbia circuits where those same industries frequently battle over cases with huge financial interests at stake. These five circuit courts are at the forefront of establishing judicial precedent on matters involving conflicts over natural resources. The placement of the nominees suggests an administration strategy of nominating corporate friendly judges in circuits where they will make the greatest impact. In many cases, these same corporations and industries are also major campaign contributors to the Bush Administration and the Republican Party.

Too bad you didn't give up your day job, Mr. McConnell. Comedy's loss.

• • •

The Overnight News Digest is posted and includes the story, Aides: Obama plans to nominate Clinton.

MN-Sen: Down to 136 votes

Fri, 21 Nov 2008 05:25:21 GMT

With 46 percent reporting, it's down to a measly 136 votes.

Of the big Democratic counties, 36 percent are in St Louis County, 42% in Hennepin County, and 30% in Ramsey.

If you follow that link, you'll see that a bunch of counties don't even start counting until the 24th, and a bunch are waiting until December to do their recounts. So this thing won't be over anytime soon.

LGBT legal goal: five in four

ndh5@law.georgetown.edu (Nan Hunter) — Fri, 21 Nov 2008 05:05:39 GMT

The bittersweet combination of the Prop 8 loss and the Obama win, combined with the Dems picking up more seats in both houses of Congress, means that a much greater focus on federal-level policy-making is in the offing in lgbt politics. In thinking about what should be prioritized, the first cut is between what the new Congress can do and what steps can the new administration take with confidence that Congress won't overrule a progressive initiatives. There are certainly lots of possible goals, but I would suggest two executive orders...

There are certainly lots of possible goals, but I would suggest two executive orders and three major pieces of legislation as the primary targets for the lgbt rights movement over the next four years. Five in four, you might say. Not that these should be the only objectives: there is much that can be done at the congressional and agency levels as well.

I would argue, however, that these five would be the most effective and pragmatic solutions to the issues facing the largest number of lgbt Americans.

President Clinton issued an executive order that prohibited discrimination against federal employees based on sexual orientation. President Obama should add gender identity to the list of prohibited bases for discrimination. One method would be by defining either "sex" or "sexual orientation" in the current order to include gender identity and expression. He has strong legal grounds for doing so, especially if the new language is added to the definition of sex discrimination, because he can invoke the ruling in Schroer v. Library of Congress, in which a federal court held that it was a violation of the sex discrimination aspect of Title VII to withdraw a job offer made to a transgender woman.
President-elect Obama has committed his administration to support anti-discrimination laws that include protection for gender identity and expression. If that means anything, it should mean that he will be willing to actually make that policy a reality for federal employees. And as a matter of principle, it's a good thing for the federal government in its capacity as the nation's largest single employer to impose anti-discrimination obligations on itself before applying them to other employers.
Another important signal from the White House on employment matters will come if and when President Obama adds sexual orientation and gender identity to the list of prohibited grounds for discrimination by private companies that have contracts with the federal government.

On the legislative side, the top priority is for Congress to pass an inclusive ENDA. This would make the first two points unnecessary, but I don't think that a trans-inclusive ENDA will get to the floor of either house until 2010, at the earliest. The executive orders could be issued any time after Obama's inauguration.

Also legislatively, repeal DoMA (especially the part limiting federal government recognition of marriage to those between a man and a woman, even if state law provides otherwise). And enact, perhaps as an amendment to DoMA, a provision that grants all federal benefits and rights and responsibilities under federal law that now go only to married persons to persons in a family relationship status formally recognized under state law. In other words, eliminate the differential that persons in civil unions now face because their status has zero standing under federal law.

Lastly, reform the health care system so that every American - whether married, single, partnered or living in a cave - has access to health care. This may not be solely an lgbt issue, but it is a fact that persons in unmarried partnerships have much higher rates of uninsurance than even the abysmal U.S. average. And health care benefits are probably the number one material issue that drives the family recognition agenda. Let's solve that problem at the root.

What I think should be the priorities don't necessarily have anything to do with sequence. As Rep. Tammy Baldwin has said, the first lgbt issue that Congress will move on is hate crimes, because it should be fairly easy legislation to pass (although of what great effect I've never been certain). The splashiest, most symbolically rich action would be a repeal of DADT. I certainly support that, but I don't rank it in my top five.

Political vagaries that we can't foresee now may affect some of these calculations, and one has to be ready to recalibrate if events demand that. But for now - five in four. Let's keep our eyes on that prize.

Law professors in the Obama administration: 32 and counting

ndh5@law.georgetown.edu (Nan Hunter) — Fri, 21 Nov 2008 05:04:59 GMT

UPDATED for 11/21; new names in redThe new administration is lawyering up; following is a list of Lawbama profs:Alex Aleinikoff - Georgetown Law - Immigration policy working group co-leaderMark Alexander - Seton Hall Law - FEC review teamDavid Barron - Harvard Law - Dept of Justice review teamPhyllis Borzi - GW Dept of Health Policy - Dept of Labor review teamJonathan Cannon - University of Virginia Law - EPA review teamAlta Charo - University of Wisconsin Law - HHS agency review teamSusan Crawford - University of Michigan Law - FCC...

UPDATED for 11/21; new names in red

The new administration is lawyering up; following is a list of Lawbama profs:

Alex Aleinikoff - Georgetown Law - Immigration policy working group co-leader

Mark Alexander - Seton Hall Law - FEC review team

David Barron - Harvard Law - Dept of Justice review team

Phyllis Borzi - GW Dept of Health Policy - Dept of Labor review team

Jonathan Cannon - University of Virginia Law - EPA review team

Alta Charo - University of Wisconsin Law - HHS agency review team

Susan Crawford - University of Michigan Law - FCC transition team co-leader

Tino Cuellar - Stanford Law - Immigration policy working group co-leader

Chris Edley - UC-Berkeley Law - Transition Project Advisory Board member; economic transition team

Cindy Estlund - NYU Law - NLRB and National Mediation Board review teams

Dan Esty - Yale Law - EPA review team

Aderson Bellegarde Francois - Howard Law - Commission on Civil Rights team co-leader

Seth Harris - New York Law School - education and labor team co-leader; transportation team co-leader

Dawn Johnsen - Indiana University-Bloomington Law - justice and civil rights review team co-leader

Marty Lederman - Georgetown Law - Dept of Justice review team

Robin Lenhardt - Fordham Law - Dept of Justice review team

John Leshy - UC-Hastings Law - energy and natural resources review team co-leader

Goodwin Liu - UC-Berkeley Law - Dept of Education review team

David Martin - University of Virginia Law - Dept of Homeland Security review team

Beth Noveck - New York Law School - Technology, innovation, and govt reform policy group advisor

Spencer Overton - GW Law - Election Assistance Commission review team leader

Samantha Power - Harvard/Kennedy School - State Dept review team

Arti Rai - Duke Law - Dept of Commerce review team

Cruz Reynoso - UC-Davis Law, emeritus - Commission on Civil Rights team co-leader

Chris Schroeder - Duke Law - Dept of Justice review team

Peter Shane - Ohio State Law - economics and international trade team

Ted Shaw - Columbia Law - justice and civil rights review team co-leader

Emily Spieler - Northeastern Law - Dept of Labor review team

Peter Swire - Ohio State Law - FTC review team

Dan Tarullo - Georgetown Law - Economic policy working group leader

Philip Weiser - University of Colorado Law - economy and international trade team

Kevin Werbach - Legal Studies Department, Wharton School - FCC transition team co-leader

++++

Unfortunately, funding for a project to promote women appointees in the new administration has failed to materialize.

Readers - please e/mail me if you know of additions or corrections.

Open Thread and Diary Rescue

Fri, 21 Nov 2008 04:15:05 GMT

Tonight's Rescue Rangers are Louisiana 1976, ybruti, mem from somerville, dadanation, jennyjem, jlms qkw, and taylormattd as editor.

Please enjoy reading these outstanding, ranger-selected diaries:

LiberalTexan informs us that the debate over creationism vs. science will soon be resuming in Texas: Faith Based Initiative: Fundamentalist Religious Attack on Science in Texas. (Louisiana 1976)

gmoke describes the life and work of a great journalist in Witness to a Century: George Seldes. (ybruti)

Project Vote discusses the possible future of voting in After 2008 Election, Some States Want to Make Voting Easier; Others Determined to Make it Harder. (jlms qkw)

SuperSS wonders if it's a partisan thing, or a class thing in The Vast Right-Wing Conspiracy (See Graph). (jennyjem)

EmperorHadrian recounts how the Romans dealt with the ancient scourge in Hadrian's Forum: Pirates and Rome's War on Terror. (ybruti)

NCrissieB postulates on a barrier in the conservative mindset in Certainty, Part I - How the Party of Big Ideas became the Know Nothing Party. (mem from somerville)

LoneBlackMan politely has the last word in With Apologies To Ms. Walls (You Were So Wrong). (dadanation)

Christian Wright recounts his aunt's life and final conscious hours on Election Night in My Aunt's Last Words. (Louisiana 1976)

m3 eloquently reminds us that Today is Transgender Day of Remembrance. (jlms qkw)

justiceleague relates a remarkable success with a first-hand report on Social Networking & Campaigns - Not Just For Big Ticket Elections. (mem from somerville)

Sadly, RFK Lives reports in GOP to "bipartisanship": Drop Dead how once again the party not in power in the Senate has managed to logjam any meaningful legislative action aimed at helping stave off our country's impending and worsening financial crises. (dadanation)

jotter has High Impact Diaries: November 20, 2008.

monkeybiz has Top Comments 11.20.08: From the Dept. of Household Labor.

Please feel free to promote your favorite diaries in this open thread.

Attorney General Mukasey Collapses

Fri, 21 Nov 2008 04:05:39 GMT

Attorney General Michael Mukasey collapsed around 10 pm EDT this evening. He was the keynote speaker tonight at the Federalist Society's annual lawyers conference at the Marriott Wardman Park in Washington, D.C.

According to friends in the room, emergency paramedics were there to work on him pretty quickly, but there's no sense as to how things are going. It may have been a stroke. He has been taken to the hospital.

Justice Alito and former Attorney General Ashcroft were among those in attendance in this room of ~2000, and everyone there was pretty much silent, crying and praying quietly.

Let us keep Mukasey in our prayers as well tonight. More news as we know it.

Privacy under the 44th President? Will the New Administration Bring a New Playbook?

btavelli@proskauer.com (Brendon Tavelli) — Fri, 21 Nov 2008 03:58:11 GMT

As we prepare to welcome both the 44th President and a revamped Congress to Washington, it is time to consider what privacy under the new administration will look like. Barack Obama polled strongly on the campaign trail as the candidate most likely to advance individual privacy rights, but are the pollsters a good indicator what privacy will look like under the new administration? Here are some of our thoughts about what we may see in the next four years.

National Privacy Law: Major players in the online marketing sphere, such as Microsoft and Google, already have expressed support for a generally-applicable privacy law to preempt a growing number of state laws that impose varying requirements on the collection, use, storage and disclosure of personal information. Whether a federal law emerges governing the collection and use of personal data, including for marketing purposes, is the looming question in the new administration.

Behavioral Advertising: Behavioral advertising -- the practice of tracking of an Internet user’s activities online in order to deliver advertising targeted to an individual consumer’s interests -- which Congress examined extensively over the summer -- should continue to generate interest under an Obama administration. Indeed, the Federal Trade Commission (“FTC”) is expected to announce its final guidance concerning the self-regulation of behavioral advertising even before President-elect Obama takes office in January. We are also likely to see behavioral advertising legislative proposals at the state level, with efforts gaining traction in states like New York, where both Houses are now controlled by the Democrats.

Electronic Health Records: A key component of President-elect Obama’s health care plan is the migration of health care records from paper to more universally accessible forms of electronic media. The incoming president believes strongly that the use of technology will help lower the cost of health care. But as many commentators have suggested, greater accessibility carries greater risk, and the shift toward computerized health records is one area in which President-elect Obama’s aggressive technology and innovation policies may outgrow existing consumer protection safeguards. President-elect Obama’s commitment to providing robust protections against the misuse of this kind of sensitive information likely will require the development of additional, and more broadly-applicable, regulations to shore up existing safeguards provided under the Health Insurance Portability and Accountability Act (“HIPAA”) and other existing legal regimes.

Data Breach Notification: Over the past few years, states have been very active passing legislation that requires businesses that retain information about state residents to notify such residents when that information is compromised. Efforts to pass a preemptive national law have stalled largely because of the greater discretion proposed for business regarding the need to notify. That issue will likely continue to impede consensus on a national law, and the state framework is likely to be with us for a while.

Legislative activity at the state level concerning the protection of personal information, however, is likely to continue as lawmakers try to respond to several high profile information security breaches from previous years. Moreover, as we are seeing in Massachusetts and Connecticut where new data security laws have been passed, we may see a stronger push at the state level toward requiring affirmative steps to protect personal information, rather than just requiring businesses to respond to a breach incident.

More Robust Federal Trade Commission: President-elect Obama plans to enlarge the FTC budget and enforcement power to aid in the implementation of his technology and innovation policies. The FTC’s expanded powers will likely be used to enforce the Commission’s new identity theft Red Flags Rule, which requires financial institutions and creditors to implement comprehensive written identity theft prevention programs by May 1, 2009. The FTC’s decision to extend the original November 1, 2008 compliance deadline for an additional six months portends relatively immediate enforcement activity in Summer 2009 that will help define precisely what is required, and from whom, under the Rule. The push for more enforcement power may also spur the expansion of the FTC’s authority to seek civil penalties and other monetary remedies for violations of the statutes and regulations the Commission enforces.

Location Data & Government Surveillance: President-elect Obama’s desire to develop and better utilize available technologies to create real change in America will likely create some friction in the areas of government surveillance and the collection of location data where the interests of national security and personal privacy diverge. Moreover, the private sector’s collection and use of location data and other “tracking” information to more effectively market to consumers raises concerns on both sides of the aisle since these technologies arguably can be misused to compromise national security or personal privacy. While we expect the Obama administration to back away from the aggressive government surveillance policies and programs implemented by the previous administration in the wake of September 11, 2001, the success of these efforts will require a delicate balance between a strong stance on national security and a shift toward protecting the privacy of Americans at home.

Ellen

Fri, 21 Nov 2008 03:15:05 GMT

My wife and I bought our house in May 2006 from Ellen and Rosemary, an elderly lesbian couple. They had done beautiful work to the house, having planned on staying here the rest of their lives. But grandchildren came, and with that, they ran off to North Carolina to be closer to the little ones. I told them how exciting it was that they could help turn North Carolina Blue.

This house had a lot of memories for them, including being the location of their commitment ceremony. They were intensely proud of the house, even flying off the handle when the housing inspector found a few inoffensive nitpicky "flaws" in his inspection report. Even though my wife and I shrugged at those minor blemishes, when we moved in, the couple had already had them all fixed.

While they couldn't officially marry in this beloved house of theirs, they eventually went up to Massachusetts this past September and married. It must've been really sweet.

Being elderly and living in the East Coast, they apparently went to bed early on Election Night. Sometime in the middle of the night, Ellen woke up and asked Rosemary, "who won?" Her wife pulled out her laptop, and said, "Obama did. It's now official." Ellen, a huge Obama fan, smiled and went back to bed. Shortly thereafter, she died.

Rosemary jokes that Ellen waited just long enough to find out the results so she could go and tell Obama's grandmother the great news.

Judge Orders Five of Six "Boumediene" Detainees Freed

Fri, 21 Nov 2008 02:35:05 GMT

In another stinging rebuke of the Bush administration's conduct of the war on terror, a U.S. District Court Judge has ordered that five Algerian detainees be released. SCOTUSblog has some analysis:

U.S. District Judge Richard J. Leon, in the first ruling to carry out the Supreme Court’s June decision on detainees’ rights, ordered the federal government to release five Guantanamo Bay detainees "forthwith." The judge found, however, that the government had justified the continued imprisonment of a sixth detainee, Belkacem ben Sayah.

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners, suggesting that "seven years is enough" in captivity. He argued that the government could pursue whatever legal issues it wished to while defending on appeal his ruling in the case of ben Sayah....

In ruling against the government as to the five detainees, Judge Leon said that the Justice Department and intelligence agencies had relied solely on a classified document, which he found was not persuasive on the government’s claim that the five had planned to travel to Afghanistan to join in hostile actions against the United States and allied forces.

It's unlikely that that Bush administration will take Judge Leon's advice and not appeal his ruling, given last month's appeal of the order that 17 Chinese-born Muslims, all deteremined to be innocent, be released. However, this is a blow struck for the restoration of habeas. The executive director for the Center for Constitutional Rights, which has taken the lead in the Guantanamo cases, had this statement:

Even in a courtroom that was closed to the public and the press, and with the detainees allowed access to the proceedings only by telephone, the court could find no reason to hold these men. This decision makes it clear once again that even with presumptions in its favor, the government cannot muster the barest evidence in support of its arbitrary detentions. For seven years, the Bush administration sought to avoid the courts because it had no evidence and sought instead to create a lawless prison.

We must note that justice here, however, comes seven years too late. The restoration of habeas corpus is a great achievement, and what is necessary now is for the government to give up this charade, rescind the ‘enemy combatant’ labels slapped on recklessly by combatant status review tribunals and return the men at Guantanamo to their home countries or, for those needing resettlement or asylum, to a safe third country.

We hope a new administration makes restoring the lives of hundreds of men at Guantanamo who have never been charged with any crime or tried in a court of law a top priority. Guantánamo Bay is a failure by every measure and must be closed immediately.

That is likely to happen. Here's what President-elect Obama had to say on 60 Minutes last Sunday:

CBS: There are a number of different things you can do early on pertaining to executive orders.

OBAMA: Right.

CBS: One of them is to shut down Guantanamo Bay. Another is to change interrogation methods that are used by U.S. troops. Are those things that you plan to take early action on?

OBAMA: Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture, and I’m going to make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.

Dan Michaluk

daniel-michaluk@hicksmorley.com (Dan Michaluk) — Fri, 21 Nov 2008 01:53:00 GMT

On November 19th, the British Columbia Court of Appeal dismissed a defendant’s motion to postpone the production of a non-privileged video surveillance tape so it could better test the plaintiff’s credibility in oral discovery. The dispute was about the discretion to order relief from production that is granted expressly by Rule 26(1.2) of the British Columbia Supreme [...]

The dispute was about the discretion to order relief from production that is granted expressly by Rule 26(1.2) of the British Columbia Supreme Court Rules. The essence of the Court of Appeal’s decision is captured in the following excerpt:

In my view, it is the extensive scope of this common law disclosure rule that created the need for reasonable limitations. Stated in another way, it is the “slavish” application of R. 26(1) which informs the scope of R. 26 (1.2).

The appellants seek to distinguish these decisions under R. 26(1.2) on the basis that they do not involve a key issue of credibility. They submit that, in this case, an order postponing the production of the surveillance videotapes would give them the opportunity to test the willingness of the respondent to lie about her claim. They argue that, in the absence of such an order, the respondent might tailor her evidence to fit the scenario depicted in the videotape.

With respect, I do not accept this argument as representing a valid purpose for an application of R. 26(1.2). In this case, there has been no factual determination regarding the respondent’s truthfulness, or lack thereof. This is the appellants’ theory of liability, and it is for them to establish in the course of the trial. Nor am I persuaded that the Rules of Court were intended to be used in a manner that would displace a right of a party granted under them, in favour of creating an opportunity for an adverse party to advance their theory of a fact in issue.

This excerpt followed a detailed lead-in on how Rule 26(1.2) has been applied to protect privacy (by allowing for the redaction of non-relevant and sensitive information) and to encourage proportionality in production. The only other jurisdiction with a comparable provision is the Federal Court (see section 230 of the Federal Court Rules).

Stephen v. McGillivray, 2008 BCCA 472.

LA-04: Three New Polls Show The Race Either Close, Or Not Close

Fri, 21 Nov 2008 01:30:04 GMT

The great thing about polls is that sometimes they're all over the map. Check out the latest trifecta in the LA-04 race, which pits Democrat Paul Carmouche against Republican John Fleming.

First, the independent poll, from SurveyUSA:

SurveyUSA for Roll Call. 11/17-18. Likely voters. MoE 3.9%

Fleming (R) 47
Carmouche (D) 45

Close race, this one. In fact, Fleming's own internals show it even closer, although they also show him ahead:

Public Opinion Strategies (POS) for John Fleming. 11/17-18. Likely voters. MoE 4.9%

Fleming (R) 43
Carmouche (D) 42

OK, so this is a deadlock with a Fleming edge, right? Not so fast: Carmouche's internals show him up big:

The Kitchens Group for Paul Carmouche. 11/18-19. Likely voters. MoE 4% (11/6-7 numbers)

Carmouche (D) 48
Fleming (R) 37

Hmmm. The strangest thing about this poll is that it pegs black turnout as lower than either Fleming's internals or the SUSA poll...but nevertheless gives the 'Mouche an 11-point lead.

Bottom line, consider this a tossup. If Carmouche does wind up winning big, so much the better.

On the web:
Paul Carmouche for Congress