Texas jurors to get a pay increase but only after one day of service

Thursday, December 29, 2005

Texas jurors to get 1st raise in 50 years
Pay stays at $6 for first day but rises to $40 for every additional day

By MICHAEL GRABELL and ROBERT THARP / The Dallas Morning News


Starting next week, Texas jurors will get a raise.

For their first day of service, jurors will continue to receive $6. But for
every additional day, jurors will receive $40 a day, the first increase in
more than 50 years.

Texas currently has the lowest jury pay in the country.

"Jurors simply can't make it in downtown Dallas on $6," family court Judge
Marilea Lewis said. "That simply isn't enough when you're talking about
child care and income that's lost while you're sitting on a jury."

Disappointed by weak turnout – about 20 percent of those summoned in Dallas
County – the Legislature passed a bill this year to raise the rate for all
courts, whether the juror is called for a death penalty trial or a personal
injury case.

A 2000 study by The Dallas Morning News and Southern Methodist University
found that Hispanics, young adults and low-income people couldn't afford to
miss work for jury duty.

As a result, those groups were under-represented on Dallas County juries.

"Jury duty should be a public duty and a public service and not a public
sacrifice," said Domingo Garcia, a Dallas attorney who filed a similar bill
as a state representative in 2001.

"To people who live paycheck to paycheck, people in the service industry or
who work in construction jobs, it is really a sacrifice to serve on a jury.

"That's the difference between paying the rent or buying the groceries."

Parking agencies offer discounts for jurors, and Dallas Area Rapid Transit
offers free transportation on the first day. But the cost of parking,
transportation, missed work and child care can make jury duty expensive.

State civil court Judge Jay Patterson said he declared a mistrial this month
when two people picked for the jury on a business dispute case said that
serving would create a hardship for them.

"The goal is to have people who are in the court system to have confidence
that they're going to be fairly treated and have a jury of their peers," he
said.

The increase will be paid for by a new $4 fee for anyone convicted of a
crime other than a parking or pedestrian violation.

Rob Walters, a partner with the law firm Vinson & Elkins, said that he's
hopeful about the pay hike but that it would take time to determine whether
it improves attendance. The law firm took up the cause and helped draft the
legislation after becoming aware of the problem courts were having.

When Texas started paying jurors in 1866, the pay was intended to be the
equivalent of a day's wage. But the pay hasn't kept up with the cost of
living.

"Over time, it's gone from what it's intended to be to something that
doesn't even pay for lunch or parking," Mr. Walters said.

But economics isn't the only reason Dallas residents don't show up for jury
duty. About 40 percent of the notices can't be delivered because of outdated
address records.

Since September, the county has been using a new, more accurate list of
potential jurors. But Helen Walker, a Dallas County jury services
coordinator, said jury summonses are still returned by the box load every
day.

"We're hopeful," she said. "So far, as of today, it still hasn't happened."

Martin Garza, president of the Dallas Hispanic Bar Association, said that
raising pay could increase historically low Hispanic turnout, but he said
more needs to be done to educate the community.

"It's a level of distrust about the legal system," said Mr. Garza, a real
estate attorney at Hughes & Luce. "I think a lot of it is making sure we
have Hispanic jurors who understand how the system works and understand that
it's a civic duty to show up."
- - - - -
E-mail mgrabell@dallasnews.com
and rtharp@dallasnews.com

Protecting Juveniles v. Protecting Public: The unseen price of sealing records

Sunday, December 18, 2005

Closed courts hide crimes from public
Calls grow louder for lifting the curtain on proceedings; advocates for young offenders are urging caution

By Andrew Wolfson
awolfson@courier-journal.com
The Courier-Journal

When Diana Thornsberry sent her 12-year-old daughter for a sleepover next door March 29, 1995, she had no idea that her neighbor's 17-year-old son had been convicted two years earlier of raping a 7-year-old girl.

Because Kentucky law protects juvenile offenders, she found out about Jeremy Gipson's record only after he raped, sodomized and murdered her daughter Jessica, then dumped her body in Louisville's Iroquois Park.

The attorney general at the time promised Thornsberry that her daughter's death would not be in vain.

But 10 years later Kentucky still prosecutes juveniles behind closed doors, then locks away their records.

The result: Nobody knows whether a dangerous juvenile is in their midst, or whether Kentucky is getting its money's worth for the tens of millions of dollars it spends on prosecution, treatment and rehabilitation of young offenders.

Kentucky shrouds its juvenile courts behind some of the strictest secrecy laws in the nation, requiring the public to accept on faith that it is being protected from dangerous children -- and that innocent children are being protected from dangerous adults.

It is one of only 15 states that bar the public and press from all delinquency proceedings.

The cloak of confidentiality is designed to protect juvenile offenders from being stigmatized, and to ease their transition into the community. But as a result of closed proceedings, The Courier-Journal found that:

After an 18-year-old was released in June from a state sex-offender program, he immediately found a job at a day-care center in Western Kentucky — a fact discovered only because he asked the Department of Juvenile Justice to send his vaccination records to his new employer.

After a juvenile allegedly beat 83-year-old June Bissmeyer nearly to death Oct. 15, 2004, during a robbery of her home, neighbors on Six Mile Lane said they were at a loss to protect themselves because they couldn't find out who did it or what had become of him.

"I didn't know who to look out for. It was very disturbing," said Rebecca Brewer, who owns an apartment building on the block occupied by several elderly residents.

For seven years , Dorothy Shelton lived next door to a sex offender in Madisonville , Ky., before she found recently that Timothy Wayne Brackett had been convicted of sodomizing a 9-year-old boy in 1998 when Brackett was 16. His conviction became public only when he was indicted recently in federal court on 19 counts of distributing child pornography over the Internet.

"I don't care how old someone is," Shelton said. "If they are doing something like that, it needs to be public record."

In October 2004, five Southern High School students were arrested on charges of felony terroristic threatening based on maps and notes that appeared to be part of a planned attack at the school. Parents were never told the identities of the alleged offenders and what happened to them in court.

A HEATED DEBATE

It's `public blind spot' versus `scarlet letter'

Now Kentuckians may get to find out.

Lt. Gov. Steve Pence has announced that the administration will support legislation in the 2006 General Assembly that would open the prosecution of juveniles for felony crimes to the public and press.

Also, juveniles 14 and older accused of felony sex offenses automatically would be tried as adults and, if convicted, would have to register like adult sex offenders.

"These are serious offenses that the public has a right to know have been committed," Pence said.

At the same time, the Kentucky Press Association, which represents all 145 of the state's newspapers, including The Courier-Journal, is fighting in the federal courts to win access to state juvenile proceedings, citing the First Amendment's guarantees of freedom of the press.

The KPA lost the first round in U.S. District Court in Frankfort and is appealing.

"Juvenile courts have been allowed to conduct business in the public's blind spot," said John Nelson, managing editor of the Advocate-Messenger in Danville, who was president of the KPA when it filed the suit last year. "They are there, but we can't see them,"

A survey conducted this summer by the Kentucky County Attorneys Association found that prosecutors generally support opening juvenile hearings if the charge is a felony and the defendant is over 15, said Hopkins County Attorney Michael Foster, chairman of the group's legislative committee.

But advocates of confidentiality contend that it is essential to keep juveniles from being branded as criminals for life and that opening juvenile court would defeat its very purpose — to treat and successfully return them to the community.

"What are we going to do — put a scarlet letter on kids?" asked Rebecca DiLoreto, a juvenile specialist and post-trial division director in the state Department of Public Advocacy, which last year defended 18,420 juvenile cases. Juveniles "are still teachable and not yet hardened criminals," the attorney general's office has argued in opposing the press association's lawsuit.

Terry Brooks, director of Kentucky Youth Advocates, said, "Our concern is that a bad decision you make when you are 14 could loom to haunt you into adulthood."

Advocates for juveniles say most of them get in trouble because of intensely personal problems in their lives — they are being abused or their parents are going through a divorce, for example, or they are addicted to alcohol or drugs. If the doors of juvenile court are opened, advocates say, that kind of sensitive information won't be shared with the judge for fear of others finding out.

SMOOTH TRANSITION

States that changed have reported few problems

Juvenile court proceedings fall into two broad categories.

In delinquency cases, juveniles are charged with crimes. In dependency cases, judges decide whether to remove children from their families because they are being abused or neglected.

The legislation Pence supports would open only delinquency court. The press association's suit seeks to open proceedings in both types of cases. Eighteen states open at least some portions of dependency cases.

Juvenile courts have been closed to the public since the early 20th century, when reformers designed them as informal proceedings in which, as the U.S. Supreme Court once said, "a fatherly judge and a wayward boy would sit side by side so the judge could put his arm around the bad boy and gently lead him back onto the righteous path."

But responding to public outrage over juvenile crime, legislatures in many states began in the 1980s to pull back the cloak of confidentiality.

Fourteen states either permit or require that juvenile delinquency hearings be open to the public and 21 others, including Indiana, open delinquency hearings to the public for certain offenses or for defendants of certain ages.

Kentucky allows the public and press into juvenile hearings only at the invitation of the defendant. While juveniles charged with the most serious offenses may be tried as adults (and those who use firearms in crimes are automatically transferred) only 524 of 19,900 juvenile cases statewide, or 2.6 percent, were removed from juvenile court last year.

There is little research on the impact of opening juvenile courts.

After Minnesota's chief justice opened dependency hearings in three counties in 1998 in a pilot project, the National Center for State Courts found it led to a slight increase in attendance at hearings; caused no harm to children; enhanced professional accountability; and showed that media were responsible in their coverage of the cases. As a result, the state opened such hearings statewide in 2001.

In states that have opened delinquency proceedings, judges and even defense attorneys say fears that it would stigmatize children and other concerns have not materialized.

In Oregon, where juvenile court hearings have been public since 1980, the head of the state's largest public defender office said openness hasn't hurt anyone.

"Everyone was sure it would ruin people forever — that never occurred," said James Hennings, executive director of the Metropolitan Public Defender agency in Portland. "We don't need to hide behind the curtain."

Judge Deanne Darling of Clackamas County, Ore., said the threat of public exposure has encouraged parents to keep a tighter rein on their children.

In Indiana, where felony cases have been opened for more than a decade, Clark Superior Court Judge Jerry Jacobi said it has been "the greatest non-event in the past 10 years." Although defendants can move to close hearings, Jacobi said not a single one has done so in his courtroom.

In Colorado, where criminal proceedings are open, Denver Presiding Juvenile Court Judge Karen Ashby said news organizations usually don't identify juveniles by name, even though they are allowed to do so.

Several national organizations have supported opening juvenile court, including the National Association of Juvenile and Family Court Judges, which says when a child is involved "in a serious crime, the public, the victims and the police have a right to know" except in the rare case in which "publicity will demonstrably cause more harm than good. Public safety overrides the reasons for confidentiality."

PROTECTING KIDS

Court officials divided on which method works

But public defenders in Kentucky, as well as some judges and prosecutors, say that airing charges in public inevitably will harm the child.

Naming a juvenile charged with a crime might keep him from being hired later, especially in small towns and rural areas, they say.

Advocates also say that juveniles labeled as criminals will decide they might as well act like one, adding that some juveniles might even commit crimes for the attention and publicity.

Measuring the impact of identifying juvenile offenders is difficult, however, and even advocates for closed courtrooms acknowledged there is no direct, empirical proof that labeling juveniles as delinquents makes them more likely to commit additional offenses.

Still, Todd County Attorney Harold "Mac" Johns says, opening juvenile court would destroy the informality that allows judges to find out what is really going on in a juvenile's life.

Fayette juvenile prosecutor Diane Minniefield noted that victims already are allowed inside juvenile court, and she said the public is protected because the court must report violent offenders to their schools.

If juvenile court is opened, DiLoreto said, it would put extraordinary pressures on elected judges, who decide the fate of the young defendants without juries, to impose harsh sentences.

"If every decision is available for the public to look at, the child will have no chance to prevail," she said.

The Courier-Journal asked Kentucky's 152 family and district court judges if they favor or oppose opening the door to juvenile court. Most declined to respond after the Administrative Office of the Courts advised them not to comment because of the pending Kentucky Press Association lawsuit.

But of the 30 who answered, 23, or 77 percent, said they favored making juvenile delinquency cases open unless a good reason was presented to close them.

"We are public servants, and we should be held accountable for our actions," Jefferson Family Court Judge Hugh Smith Haynie said. "Secret proceedings are anathema to justice."

Joan Byer, another Jefferson Family Court judge, said opening the courts would improve the system. "It's going to make people do what they do better.''

Jefferson County Attorney Irv Maze, who has championed opening juvenile court, said that some juveniles are coddled there while others are treated too harshly. The problem, he said, "is how would you know?"

Even David Richart — the former director of Kentucky Youth Advocates who heads the Louisville-based National Institute on Children and describes himself as a former "hardliner" on confidentiality in juvenile court — now says: "I think privacy and confidentiality more often protects the agency rather than the child and his family."

Franklin District Court Judge Jack Hart said, however, that he would not open the courts up, saying he thinks the system works well. "If it ain't broke, don't fix it," he said.

LEGAL OUTLOOK

Old law is blocked, new ones are uncertain

In the wake of Jessica Thornsberry's murder, the 1996 General Assembly enacted several laws that made it easier to prosecute juveniles as well as a measure that made charges and dispositions of serious felonies public.

But the very next year, the Administrative Office of the Courts advised court clerks that they didn't have to maintain a log of such cases, making it impossible to know whose records were available.

The Fayette County attorney's office voluntarily compiles a list of such offenders every six months. The most recent roster bears the names of 40 juveniles, including a 13-year-old found to have raped and sodomized a 7-year-old girl at his home.

But no list is maintained in Jefferson County, so nobody had ever requested juvenile records under the statute, juvenile court clerk Debbie Davis said earlier this year.

Chris Gorman, who as attorney general vowed to fight for open records after Jessica Thornsberry's murder, said the legislation was a compromise. "You take what you can get."

The prognosis for legislation next year is uncertain.

As chairman of the House Judiciary Committee, Rep. Gross Lindsay, D-Henderson, is often able to stymie new criminal laws he doesn't like. He said he's concerned about stigmatizing juvenile offenders. "It is hard to put a branding iron on a calf," he said.

The Courier-Journal's Bluegrass State Poll also didn't find much popular support for change. A survey of 801 adults conducted Sept. 7-13 found 39 percent favored opening juvenile crime proceedings to the public and press, while 50 percent opposed it.

The legislation also will be considered against a backdrop of declining juvenile crime in Kentucky and across the United States. The total number of juvenile cases in the state dropped from 22,514 in 2000 to 19,900 in 2004, a decline of about 12 percent, according to the Administrative Office of the Courts.

Nationally, the number of juvenile arrests for violent crime in 2003, the most recent year available, was the lowest since 1987, according to the federal Office of Juvenile Justice and Delinquency Prevention.

But Jessica's mother, Diana, said she still hopes to end the secrecy in juvenile court that she blames for her daughter's death. She said she wants "to help somebody else."

Gipson, her daughter's killer, was prosecuted as an adult for Jessica's rape and murder and is serving life without parole for 25 years. Now 28, he is eligible for parole in 2020.

Jessica would have celebrated her 23rd birthday on Oct. 19. Instead on that day, Thornsberry visited her grave at Bethany Cemetery, as she does each year on her birthday and the anniversary of her murder.

"If I'd only known," she said, "I would never have sent my daughter over there."

Why did it ever become a major story?

Reading this article, the main thought that comes to mind is why no one in the media checked out any aspects of the story before making it an international condemnation of government actions. Is the media becoming lax in checking facts before writing headlines?

Federal agents' visit was a hoax
Student admits he lied about Mao book
By AARON NICODEMUS, Standard-Times staff writer

NEW BEDFORD -- The UMass Dartmouth student who claimed to have been visited by Homeland Security agents over his request for "The Little Red Book" by Mao Zedong has admitted to making up the entire story.
The 22-year-old student tearfully admitted he made the story up to his history professor, Dr. Brian Glyn Williams, and his parents, after being confronted with the inconsistencies in his account.
Had the student stuck to his original story, it might never have been proved false.
But on Thursday, when the student told his tale in the office of UMass Dartmouth professor Dr. Robert Pontbriand to Dr. Williams, Dr. Pontbriand, university spokesman John Hoey and The Standard-Times, the student added new details.
The agents had returned, the student said, just last night. The two agents, the student, his parents and the student's uncle all signed confidentiality agreements, he claimed, to put an end to the matter.
But when Dr. Williams went to the student's home yesterday and relayed that part of the story to his parents, it was the first time they had heard it. The story began to unravel, and the student, faced with the truth, broke down and cried.
It was a dramatic turnaround from the day before.
For more than an hour on Thursday, he spoke of two visits from Homeland Security over his inter-library loan request for the 1965, Peking Press version of "Quotations from Chairman Mao Tse-Tung," which is the book's official title.
His basic tale remained the same: The book was on a government watch list, and his loan request had triggered a visit from an agent who was seeking to "tame" reading of particular books. He said he saw a long list of such books.
In the days after its initial reporting on Dec. 17 in The Standard-Times, the story had become an international phenomenon on the Internet. Media outlets from around the world were requesting interviews with the students, and a number of reporters had been asking UMass Dartmouth students and professors for information.
The story's release came at a perfect storm in the news cycle. Only a day before, The New York Times had reported that President Bush had allowed the National Security Agency to conduct wiretaps on international phone calls from the United States without a warrant. The Patriot Act, created in the aftermath of the Sept. 11, 2001, attacks to allow the government greater authority to monitor for possible terrorism activities, was up for re-authorization in Congress.
There was an increased sense among some Americans that the U.S. government was overstepping its bounds and trampling on civil liberties in order to thwart future attacks of terrorism. The story of a college student being questioned for requesting a 40-year old book on Communism fed right into that atmosphere.
In Thursday's retelling of the story, the student added several new twists, ones that the professors and journalist had not heard before. The biggest new piece of information was an alleged second visit of Homeland Security agents the previous night, where two agents waited in his living room for two hours with his parents and brother while he drove back from a retreat in western Massachusetts. He said he, the agents, his parents and his uncle all signed confidentiality agreements that the story would never be told.
He revealed the agents' names: one was Nicolai Brushaev or Broshaev, and the other was simply Agent Roberts. He said they were dressed in black suits with thin black ties, "just like the guys in Men in Black."
He had dates and times and places, things he had signed and sent back in order to receive the book. The tale involved his twin brother, who allegedly requested the book for him at UMass Amherst; his uncle, a former FBI attorney who took care of all the paperwork; and his parents, who signed those confidentiality agreements.
But by now, the story had too many holes. Every time there was a fact to be had that would verify the story -- providing a copy of the confidentiality agreements the student and agent signed, for example -- there would be a convenient excuse. The uncle took all the documents home to Puerto Rico, he said.
What was the address of the Homeland Security building in Boston where he and his uncle visited the agency and actually received a copy of the book? It was a brick building, he said, but he couldn't remember where it was, or what was around it.
He said he met a former professor at the mysterious Homeland Security building who had requested a book on bomb-making, along with two Ph.D. students and a one pursuing a master's degree who had also been stopped from accessing books. The student couldn't remember their names, but the former professor had appeared on the Bill O'Reilly show on Fox News recently, he said.
The former professor's appearance on The O'Reilly Factor did not check out.
Other proof was sought.
Were there any copies of the inter-library loan request? No.
Did the agents leave their cards, or any paperwork at your home? No.
His brother, a student at Amherst, told Dr. Williams that he had never made the inter-library loan request on behalf of his brother.
While The Standard-Times had tape recorded the entire tale on Thursday, the reporter could not reach the student for comment after he admitted making up the story. Phone calls and a note on the door were not returned.
At the request of the two professors and the university, The Standard-Times has agreed to withhold his name.
During the whole episode, the professors said that while they wanted to protect the student from the media that were flooding their voice mails and e-mail boxes seeking comment and information, they also wanted to know: Was the story true?
"I grew skeptical of this story, as did Bob, considering the ramifications," Dr. Williams said yesterday. "I spent the last five days avoiding work, and the international media, and rest, trying to get names and dates and facts. My investigation eventually took me to his house, where I began to investigate family matters. I eventually found out the whole thing had been invented, and I'm happy to report that it's safe to borrow books."
Dr. Williams said he does not regret bringing the story to light, but that now the issue can be put to rest.
"I wasn't involved in some partisan struggle to embarrass the Bush administration, I just wanted the truth," he said.
Dr. Pontbriand said the entire episode has been "an incredible experience and exposure for something a student had said." He said all along, his only desire had been to "get to the bottom of it and get the truth of the matter."
"When it blew up into an international story, our only desire was to interview this student and get to the truth. We did not want from the outset to declare the student a liar, but we wanted to check out his story," he said. "It was a disastrous thing for him to do. He needs attention, he needs care. I feel for the kid. We have great concern for this student's health and welfare."
Mr. Hoey, the university spokesman, said the university had been unable to substantiate any of the facts of the story since it first was reported in The Standard-Times on Dec. 17.
As to any possible repercussions against the student, Mr. Hoey said, "We consider this to be an issue to be handled faculty member to student. We wouldn't discuss publicly any other action. Student discipline is a private matter."
Dr. Williams said the whole affair has had one bright point: The question of whether it is safe for students to do research has been answered.
"I can now tell my students that it is safe to do research without being monitored," he said. "With that hanging in the air like before, I couldn't say that to them."
The student's motivation remains a mystery, but in the interview on Thursday, he provided a glimpse.
"When I came back, like wow, there's this circus coming on. I saw my cell phone, and I see like, wow, I have something like 75 messages and like something like 87 missed calls," he said. "Wow, I was popular. I usually get one or probably two a week and that's about it, and I usually pick them up."

Contact Aaron Nicodemus at anicodemus@s-t.com

This story appeared on Page A1 of The Standard-Times on December 24, 2005.

Property Rights Under the Fifth Amendment

Posted on Fri, Dec. 23, 2005


Do you have a right to own property? Technically, no

By H. CLARK LEMING
SPECIAL TO THE FREE LANCE-STAR

STAFFORD, Va. - Search the Bill of Rights for a provision establishing your right to hold and convey property and you will not find it. Instead, the Bill of Rights -- specifically, the Fifth Amendment -- provides that the federal government cannot deprive a citizen of his property (or his life or liberty) without "due process of law."

The Fifth Amendment goes on to prohibit the taking of private property for public purpose "without just compensation." Later, the Fourteenth Amendment imposed the same prohibition on the individual states.

Thus, rather than establishing a fundamental right to own or control property, the Bill of Rights, and especially the Fifth Amendment, merely prevents the government from taking property except under limited circumstances.

So, what is "property," and how does one obtain property rights? Actual property rights are generally bestowed by common law or by state government, rather than by the federal Constitution. "Property" means an intentional right of domination lawfully obtained over a particular material or object with the unrestricted ability to use, enjoy and dispose of it.

Property comes in two basic forms: "intangible," such as trade secrets, intellectual creations and reputation; and "tangible," which refers to things permanent and fixed, such as lands, tenements and chattel.

Traditionally, a landowner held title to not only the actual soil, but to everything attached to it -- trees, vegetation, water, structures. Even the manure that fell upon the soil was considered part of the land.

The modern term "property rights" is shorthand for the assertion by a landowner of his ability to use his land in a manner unfettered by government. Property rights covers many sorts of individuals: a developer who wants to build a shopping center, a homeowner who seeks to add on a deck, a high-security operation that wants to establish an anti-terrorist training facility.

While this legal tradition is generally alive and well in America, in two important areas the government's interest legally outweighs individual property rights -- namely confiscation, or taking, and land-use regulation.

A fundamental principle established by the Fifth Amendment is that government cannot take private property without just compensation.

Most takings occur in the context of condemnation, or the acquisition of private property by the government, usually for some form of infrastructure such as roads, utilities or public recreation -- although the U.S. Supreme Court ruled recently that the government also can take property for private development, provided that a public purpose can be articulated.

Generally, the government's right to take property for a lawful public purpose is absolute; the only legal issue is the amount due the property owner.

In recent years, a new form of taking has evolved -- "regulatory taking," which occurs when government regulation deprives a landowner of his land's economic viability. Then, the courts have ruled, the owner must be fairly compensated, just as in a traditional condemnation.

Despite judicial concerns about regulatory takings, private property is subject to the government's proper exercise of its constitutional police power through zoning. Such regulation is not viewed as a taking and does not breach the constitutional prohibition against uncompensated takings so long as a legitimate state interest is advanced and the landowner retains the ability to profit from his land.

The purpose of zoning is to strike a balance between broad community policy objectives -- clean air and water, good schools, adequate infrastructure, and recreation -- and established private-property rights.

The ability to use property profitably and the "predictability" of property-development opportunities have major implications for the economy.

Often, citizens unfamiliar with the labyrinth of legal principles that limit government regulation are frustrated by local governments' inability to prevent growth and its unwelcome cousin, congestion. The appearance of inaction, however, is more related to the legal limits on zoning regulation than politicians' failures. Efforts by local government to control growth cannot so fundamentally alter property rights that the line is crossed between regulation and taking.

In many states, one or two important legal principles constrain local elected officials from curbing unwanted growth: "Dillon's Rule" and "vesting."

Dillon's Rule, based on a 19th-century treatise by Judge John F. Dillon of Iowa, limits the power of local governments to those granted by the state legislature. In many states, local government cannot, for example, simply decide to stop issuing building permits, charge builders for the financial impact new homes have on schools, or refuse to let new homes tie into utility services.

Meanwhile, vesting prevents a local government from amending old zoning approvals that may be outmoded. While such old zonings may fail to mandate necessary infrastructure or cash proffers to offset the present-day financial impact of development on a community, the owners of such properties are, even so, entitled to proceed with their development as originally approved.

The strong suit of local government is controlling, through zoning, the location and quality of certain kinds of development -- even as market conditions dictate the basic demand for development. Compromise and cooperation between localities and property owners are the best ways to foster reasonable growth while providing necessary infrastructure.

Also, government's acquisition of property rights through direct payment -- for example, in the form of conservation easements -- and the authority to sell and transfer density may be other lawful means of balancing the needs of localities with established property rights.

A fuller appreciation for property rights guaranteed under the Fifth Amendment may help localities define their role in regulating land use and creating a better plan for responding to growth. In any case, property rights are here to stay.

FIFTH ADMENDMENT | PROPERTY RIGHTS

V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Bill of Rights

Fifth Amendment

Posted on Thu, Dec. 22, 2005


To 'be twice put in jeopardy of life or limb'

By JACK KING
special to The Free Lance-Star

WASHINGTON - How many times can a prosecutor hale you into court and put you on trial for the same traffic ticket? Until he wins?

How much punishment is enough?

What did the Framers mean when they said that no one could be twice put "in jeopardy of life or limb"?

Such was the fervor to break from England and create a new kind of representative government that the colonists were willing to risk being drawn and quartered. The penalty for treason was explicitly spelled out in Blackstone's Commentaries on the Laws of England, which was the bible of every Colonial lawyer and judge:

1. That the offender be drawn (dragged) to the gallows, and not be carried or walk.

2. That he be hanged by the neck, and then cut down alive.

3. That his entrails be taken out, and burned, while he is yet alive.

4. That his head be cut off.

5. That his body be divided into four parts.

6. That his head and quarters be at the king's disposal.

The words "life or limb," then, meant just what they say. Punishments were often gruesome. When the Constitutional Convention met in Philadelphia in 1787, the new states adhered to the laws of England as they had stood on July 4, 1776. Almost all felonies carried the death penalty, and it is easy to believe that the drafters meant literally that no person ought to "be twice put in jeopardy of life or limb" for the same crime.

That proposal became known as the double jeopardy clause, and it is found in the Fifth Amendment to the U.S. Constitution.

But the clause has come to mean more -- so much more that the U.S. Supreme Court has revisited it time and again. As then-Associate Justice William Rehnquist observed more than two decades ago, "While the Clause itself simply states that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb,' the decisional law in the area is a veritable Sargasso Sea," challenging "the most intrepid judicial navigator."

But underlying the myriad interpretations of the clause are its three basic prohibitions:

It protects against a second prosecution for the same offense after acquittal.

It protects against a second prosecution for the same offense after conviction.

Perhaps most important, it protects against multiple punishments for the same crime.

Common law had established that a person could not be tried twice for the same crime. If the first trial ended in acquittal, the plea autrefois acquit -- already acquitted -- would bar a second indictment. Likewise, if the first trial ended in a conviction, the plea autrefois convict barred a second prosecution. What the Framers did was make these common-law pleadings an irrevocable constitutional right.

It follows that if a person can be tried only once for a crime, he can be punished only once for it. In the days when the usual sentence for a felony was hanging, the problem of a convict's being punished twice did not often arise. But the concept existed in common law, probably for misdemeanors, which were often punished by fine or forfeiture.

Before the Revolutionary War, the prohibition against double punishment was summed up in Lord Coke's maxim, "Nemo debet bis puniri pro uno delicto" (No one can be twice punished for the same crime).

Nearly a century after the Constitutional Convention, the Supreme Court declared the prohibition against double punishment a constitutional right deriving from the Fifth Amendment. In an 1873 case, Ex Parte Lange, the high court heard the case of a man who had been convicted of the petty offense of stealing some empty U.S. mailbags for his own use (a federal misdemeanor).

The federal theft statute prescribed a punishment of up to a year's imprisonment or a fine of up to $200. The judge sentenced Lange to a year in jail and a $200 fine.

The or turned out to be important. Lange paid his fine and was taken into custody by the U.S. marshal, only to immediately file for a writ of habeas corpus declaring that, having paid the fine, he was being held unlawfully.

The court agreed: "It is very clearly the spirit of the [double jeopardy clause] to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection" -- emphasizing the word spirit. Ex parte Lange was also the first Supreme Court case that explicitly held that the double jeopardy clause covers misdemeanors.

It was not until 1969 that the Supreme Court found it necessary to hold that the clause applied also to the states through the 14th Amendment. John Benton was convicted at trial of burglary but acquitted of larceny. He appealed and won a new trial -- at which he was convicted of the burglary and the same larceny for which he had once been acquitted.

In Benton vs. Maryland, the Supreme Court reversed Benton's larceny conviction, holding that he could not be tried a second time for a crime for which he had been found not guilty. The court held that the double jeopardy clause applied to state crimes also.

As we celebrate the Bill of Rights, we can be thankful to the Framers, who crafted an enduring and resilient plan of self-government unlike any the world had ever seen, for infusing fairness into our criminal justice system.

FIFTH ADMENDMENT | DOUBLE JEOPARDY

V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

THE BILL OF RIGHTS

The Free Lance-Star in Fredericksburg, Va., has asked writers from across the country for their takes on each of the U.S. Constitution's first 10 amendments.

Was an Innocent Man Put to Death

In the mid-1990s a book called May God have Mercy was written about the Coleman case. It was required reading in one of my courses and students could not believe the many discrepancies revealed by the author.

Should DNA tests prove that he was executed in spite of being innocent, one can expect that the death penalty issue will become a major public policy debate.

Good for Mark Warner for ordering sweeping DNA review
December 21, 2005 12:50 am
Ray Strong

We just learned that Gov. Warner has ordered the testing of available DNA evidence in all of the 660 Virginia cases where it has been preserved ["DNA tests reveal two more wrongful convictions," Dec. 15].

Kudos for him. It is sad that this is the result of learning in recent weeks that sample testing shows some innocent people were incarcerated and that modern DNA tests show they were innocent of the crimes for which they were convicted.

It is, however, wonderful that technology allows us to attempt to put right our past mistakes, however late they may be.

I applaud the governor's actions and hope and pray that no other mistakes are found.

However, if they are, we should make the corrections as soon as possible for the sake of the innocent and the victims of these crimes, whose perpetrators went free when the wrong person was convicted.

Our judicial system needs to function correctly to preserve its integrity and our faith in it.

Also, for the sake of justice, I urge the governor to test the DNA evidence in the case of the executed Roger Keith Coleman. This case needs to be put to rest.

The people of Virginia deserve to know whether a previous execution involved an innocent or guilty man. For better or worse, we deserve to know so we can chart a better, more just course in the future.

No innocent person deserves to be incarcerated or executed. Science provides us with a better way to achieve fair justice, and we Virginians should take advantage of it.

Regardless of whatever else happens, bravo for Gov. Warner's actions today. He deserves our respect.

Ray Strong

Spotsylvania
Copyright 2005 The Free Lance-Star Publishing Company.

http://www.usatoday.com/news/nation/2005-12-22-execution-dna_x.htm

DNA tests could show if Va. executed innocent man
By Richard Willing, USA TODAY
Virginia's governor is preparing to order DNA tests that could show that a coal miner executed for a rape-murder in 1992 did not commit the crime.

If the tests, which Democratic Gov. Mark Warner is expected to order before he leaves office in mid-January, clear Roger Coleman, death penalty opponents say it would be the first time in the history of the American death penalty that an executed convict is scientifically shown to be innocent.

"The final argument (of death penalty advocates) is that no innocent person has been executed," said Richard Dieter, director of the Death Penalty Information Center, a Washington, D.C., group that seeks to end capital punishment.

"If you find an innocent man who has been executed, that's a final nail through that," Dieter said.

Ellen Qualls, a spokeswoman for Warner, said the governor's office has "basically worked out" details of how tests will be conducted with Coleman's representatives and with a California lab that has held evidence from the crime scene for about 15 years.

She said a decision on testing will be made shortly.

Forensic Science Associates of Richmond, Calif., performed DNA analysis before Coleman's execution, using a now-obsolete technique. The tests could not exclude Coleman as the killer, but could not say definitively that he committed the crime.

DNA tests developed since that time could exonerate Coleman or confirm his guilt.

Coleman, a coal miner in Grundy, in southwest Virginia, was convicted of the 1981 rape-murder of Wanda McCoy, his sister-in-law.

He claimed innocence from the start, testifying at his trial that he was elsewhere at the time the crime occurred.

Several witnesses gave evidence that tended to support his alibi.

Because Coleman's lawyers missed a filing deadline, appeals court judges did not see additional evidence suggesting that another man raped and murdered McCoy.

Coleman's execution was opposed by Pope John Paul II. Coleman protested his innocence to the end, and predicted that he would "eventually" be exonerated.

Michael McGlothlin, a Grundy lawyer who prosecuted the case, remains convinced of his guilt.

McGlothlin's version: The miner was a likely suspect, having been convicted four years earlier for an attempted rape. Coleman's alibi was countered by other witnesses. The other man Coleman's supporters say could have been the killer was investigated and found to have a different blood type than the rapist.

"I'm in favor of testing which can resolve difficult matters, but I'm also in favor of facts," McGlothlin said."

"Because the facts are inconvenient for Mr. Coleman, that doesn't make them any less factual," he said.

John McAdams, a political science professor at Marquette University and death penalty supporter, says opponents will incur a "major hit to their credibility" if DNA tests confirm Coleman's guilt.

Fourth Amendment

Posted on Wed, Dec. 21, 2005


Undermining the castle walls

By JOHN WHITEHEAD
Special to The Free Lance-Star

CHARLOTTESVILLE, Va. - Around 9:40 one night, Estelle Newcomb's otherwise quiet evening was interrupted by the unexpected crash of her door being kicked in. Local drug investigators stormed into her quaint Virginia home while Newcomb was busy working on her computer. They drew their weapons and began screaming at the 50-year-old to get down on her hands and knees.

She was frightened into compliance. It was only after one of the officers recognized Newcomb from the community that the raid unit realized that it had mistaken her house for that of a drug smuggler. The homeowner fortunately escaped physical injury, but her sense of security and privacy was shattered.

Sadly, Newcomb's story is not uncommon. There are many such occurrences that strike at the very core of our constitutional freedoms.

Modern police surveillance is more invasive than ever. Laws are passed granting the government unfettered access into the most private matters of our lives. Meanwhile, late-breaking news floods our TV screens, reporting the most recent episodes of police brutality.

Yet many fail to recognize that the most important protection of our constitutional liberties -- the Fourth Amendment -- is crumbling.

The Fourth Amendment guarantees that we are to be free from unreasonable searches or seizures by the government. And although many continue to hear such legal phrases, the rights themselves have suffered extreme diminishment over time. In fact, two very different versions of the Fourth Amendment seem to exist: the original, which guaranteed personal privacy and freedom, and today's abused rule of law, littered with countless judicial exceptions.

Our Founding Fathers, who drafted the Bill of Rights, were deeply concerned about preserving personal liberty and property rights. Indeed, many considered freedom in one's home the most essential liberty.

The Framers believed that property and privacy rights were paramount -- even over public safety. In early America, citizens were considered equals with law enforcement officials. The authorities were almost never permitted to enter one's home without permission or violate a domicile in a deceitful manner. It was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen's home.

Also, unlike their modern-day counterparts, early Americans could resist arrest when a police officer tried to restrain them without a proper justification or warrant -- which the citizen had a right to read before being taken to jail.

Early Americans dealt with problems such as petty thievery, murder and attacks by foreign enemies. The demand for privacy stemmed from a harbored suspicion of law enforcement officials and the unbridled discretion they could abuse.

Tragically, the essential liberties that were aggressively afforded to early Americans by the Fourth Amendment have largely disappeared. Worse, many Americans have lost focus on the importance of the essential liberties that the Fourth Amendment protects.

We turn a blind eye to everyday intrusions into our privacy. We seem to care more about the newest reality TV show than we do about the fact that our government can, and does, use advanced thermal-imaging devices to watch our every move.

We fail to fully grasp the significance of reports about people getting shocked by police Tasers or laws granting the government unfettered access to the books we read. Many of us scoff at the idea that police practices such as those employed in DWI and drug checkpoints -- while used in hopes of saving lives -- often strike a brutal blow to our most fundamental liberties.

While most law enforcement agents strive to honor and respect the Constitution, many of today's police tactics and equipment conflict starkly with the "freedom" vision of the Framers. Equipment used by police -- such as sophisticated flashlights containing super-sensitive detectors that sense the contents of your breath, and cyberized taps that detect the information you read and write on your computer -- undermines the foundation of our liberties.

Despite our privacy rights, police conspicuously situate these invasive devices in front of our faces and into our personal space. Likewise, they frequently use minor breaches of the law -- such as failing to fully stop at a stop sign -- to justify a complete, but often unnecessary, search and seizure. Most disturbing, they often use lies and deceit to gain access to our homes, cars and other private possessions.

Unfortunately, the U.S. Supreme Court has been a willing accomplice in this depreciation of essential freedoms. High-court opinions are plagued with countless exceptions that pervert the letter and spirit of the Fourth Amendment. Such cases include language that the Framers never foresaw nor intended, such as the "protective sweep" exception, the "hot pursuit" exception, the "inevitable discovery" exception and the "good faith" exception. The courts use rationales such as police safety, national security and citizen protection to justify these intrusive and corruptive interpretations.

Unlike historical "officers of the peace," many modern police departments act and dress like paramilitary units. They present themselves in a manner to intimidate and coerce us. Many contemporary police units wear black, military-style uniforms and display a host of weapons that some don't hesitate to use.

Consider the story of Malaika Brooks. What began as a routine traffic stop quickly escalated to a nightmarish display of unnecessary hostility. Brooks, eight months pregnant, was pulled over by Seattle police for speeding. When she refused to sign the ticket, the officers treated her as a belligerent criminal, using a Taser gun to send a 50,000-volt shock of electricity through her.

These officers took advantage of their broad discretion and ignored their responsibility to respect her rights. Instead of handling her as a dangerous criminal, these cops should have approached Brooks as a citizen whose constitutional rights are valuable, and with a commitment to protect those rights.

Incorporating such respect into police encounters with citizens is the only way that the Fourth Amendment will keep functioning. Police officers must be trained to know, understand and discern constitutional rights. After all, the Constitution is the very document they have sworn to honor and uphold.

Finally, we the people are responsible for protecting our rights. Why do many simply shrug at abuses of rights that early Americans not only enjoyed but demanded?

Thomas Jefferson remarked, "The price of freedom is eternal vigilance." He understood quite clearly that once we give our freedoms away, we will never get them back. Jefferson was right. When citizens' Fourth Amendment protections are undermined, our most precious freedoms are not just in jeopardy -- they are destroyed.

FOURTH ADMENDMENT | SEARCH AND SEIZURE

IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Bill of Rights

The Free Lance-Star in Fredericksburg, Va., has asked writers from across the country and the political spectrum for their takes on each of the U.S. Constitution's first 10 amendments.

The Star-Telegram will run the 16-part series through the end of the year.

Coming Thursday:

The Fifth Amendment and double jeopardy.
John Whitehead, a constitutional attorney, is founder and president of the Rutherford Institute. johnw@rutherford.org He wrote this for The Free Lance-Star in Fredericksburg, Va.



© 2005 Star-Telegram and wire service sources. All Rights Reserved.
http://www.dfw.com

The Third Amendment

Posted on Tue, Dec. 20, 2005


The forgotten problem of soldiers in one's house

By ANDREW P. MORRISS
special to The Free Lance-Star

CLEVELAND - The Third Amendment states, "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner prescribed by law."

Today, the amendment appears to be a forgotten artifact of the Founders' era, for it forbids a practice that no longer troubles Americans: the quartering of soldiers in private homes.

Despite its current obscurity, reflection on the Third Amendment's history offers some important lessons for today.

The British quartering of troops in private homes, imposed in response to unrest in Massachusetts, was part of what the colonists termed "the Intolerable Acts," and the practice helped motivate the colonists to seek independence. The new nation's ban on the practice of quartering, through both the Third Amendment and comparable provisions in six of the 13 state constitutions, forced the United States to find an alternative means of providing food and shelter for troops.

The lessons of the Third Amendment go beyond its specific ban on quartering soldiers.

In 18th-century England and Wales, troops lived in permanent camps and in public houses and inns. The American Colonies, however, lacked the camps and a network of inns capable of accommodating the troops.

The problem of quartering British soldiers in the American Colonies became acute during the 1750s in the campaigns against the French and Indians. Some British units encountered no problems; they paid colonists for their troops' food and lodging. Other British officers demanded that colonists feed and shelter their troops without compensation, producing considerable unrest.

A Pennsylvania assembly delegation met an attempted requisition of private homes by the governor with "heat, passion, and rudeness," according to a contemporary account. John Dickinson, a prominent Colonial leader, spoke for many in America when he wrote that if Parliament had legal authority to compel Americans to quarter the troops, it also had the same right "to lay any burthens they please upon us. What is this but taxing us at a certain sum and leaving us only the manner of raising it?"

Quartering became a more serious issue in 1774. In response to the Boston Tea Party, Parliament amended the Quartering Act in June 1774 explicitly to allow the quartering of troops in private homes as a punishment for Bostonians' behavior. This measure seemed to go out of its way to provoke the city's inhabitants and caused the First Continental Congress to denounce the practice in its "Declarations and Resolves" of October 1774. The detested practice also prompted the drafters of the Declaration of Independence to include it among the list of grievances against the king.

Opposition to quartering was so widespread in the newly independent states that the Third Amendment provoked little controversy during the drafting of the Bill of Rights. What little debate occurred concerned whether to strengthen the ban by removing the provision allowing quartering in wartime entirely, or to require approval of a magistrate before quartering troops.

No debate occurred over the need to prevent peacetime quartering. As Judge Thomas Cooley, a pre-eminent 19th-century commentator on the Constitution, wrote: "It is difficult to imagine a more terrible engine of oppression than the power in an executive to fill the house of an obnoxious person with a company of soldiers, who are to be fed and warmed at his expense, under the direction of an officer accustomed to the exercise of arbitrary power, and in whose presence the ordinary laws of courtesy, not less than the civil restraints which protect person and property, must give way to unbridled will; who is sent as an instrument of punishment, and with whom insult and outrage may appear quite in the line of duty."

The quartering of troops is no longer an issue in American life, thanks to the unambiguous text of the Third Amendment. Court opinions and legal texts rarely cite the Third.

Nonetheless, it is worthwhile to reflect on the consequences of the amendment's solution to the quartering issue, for that solution offers some valuable lessons for public life.

Because the military pays for its supplies and shelter today, providing domestic quarters for the troops is now a popular activity among municipalities. Indeed, the problem facing the U.S. military today is not one of unwilling hosts but the fact that it is virtually impossible to close a military base without provoking a political battle to save the base for its economic benefits to the local community. The simple act of paying for quarters turned a liability into an asset.

This lesson applies to a wide range of government activities. The Endangered Species Act, for example, "quarters" species on private land, thereby reducing the scope of permissible land uses where such species live. The presence of an endangered species thus costs a landowner money, much as the presence of British troops in colonists' homes did in the 1770s.

Not surprisingly, many landowners have begun managing their property to prevent endangered species from finding a suitable habitat on their land. Private conservation groups, from Ducks Unlimited to the Defenders of Wildlife, on the other hand, have had great success with programs providing modest payments to landowners who provide crucial habitat.

Just as the practice of paying for military quarters turned an economic liability into a highly desired tenant, so too payments for habitat offer a chance to reward property owners' efforts to save endangered species rather than punishing them, through diminished land values.

We may not need to call upon courts to enforce the Third Amendment as often as we do other provisions of the Bill of Rights, for the federal government has learned the lesson of the Third in its military quartering policy. However, governments still impose uncompensated costs upon property owners -- suggesting that the more general policy lessons of the Third Amendment have yet to be fully understood.

Third Amendment

III.No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The Bill of Rights

The Free-Lance Star in Fredericksburg, Va., has asked writers from across the country and the political spectrum for their takes on each of the U.S. Constitution's first 10 amendments.

The Star-Telegram will run the 16-part series through the end of the year.

Freedom by Repenting or Execution

Afghan Journalist to Be Freed
Magazine Editor Apologizes to Court to Avoid Possible Death Penalty

By Griff Witte
Washington Post Foreign Service
Friday, December 23, 2005; A14

KABUL, Afghanistan, Dec. 22 -- An Afghan journalist who was recently sentenced to two years in prison for publishing controversial magazine articles about Islam, women's rights and the Afghan justice system will be released from jail later this week, officials said.

Before gaining his freedom, however, Ali Mohaqeq Nasab had to confront an agonizing choice: formally apologize for what he had published or risk being sent to the gallows.

After refusing for three months to retract his comments, Nasab told an appeals court this week that he was sorry for printing stories that asserted women should be given status equal to men in court, questioned the use of physical punishments for crimes and suggested converts from Islam should not face execution.

A panel of three judges responded Wednesday by shortening his punishment to a six-month suspended sentence, allowing him to walk free.

The case has aroused concern among international human rights groups and stirred contradictory passions in Afghanistan. Religious hard-liners here had called for Nasab's death; free speech advocates, women's rights backers and fellow ethnic Hazaras had asked that he be shown mercy.

As postwar Afghanistan tries to chart a path between religious traditions and modern democracy, Nasab's fate is being seen as an indicator of how much -- and how little -- the country has changed since the ouster of Taliban rule in 2001.

"Nasab's release is an encouraging sign," said Nader Nadery, who heads Afghanistan's Independent Human Rights Commission. "But the case sets a bad precedent in the area of freedom of expression. It discourages journalists and promotes self-censorship."

Nadery said other Afghan journalists had already told him that they "have to be very, very careful in the way that they talk."

Afghan news media have proliferated rapidly in the past four years, with newspapers, radio and television stations sprouting after more than two decades of conflict. According to the new constitution, the media have broad freedom to publish and broadcast without fear of reprisal. But local leaders have physically intimidated reporters, and conservative judges have occasionally tried to punish journalists who broach controversial topics.

Nasab returned to Afghanistan last year following a long exile in Iran and began publishing a magazine called Women's Rights. Articles in the May issue attracted the attention of a Muslim cleric, who denounced Nasab as an infidel during Friday sermons.

When Nasab complained to officials in the justice system in September, he was detained on charges of blasphemy. Prosecutors said Nasab's articles -- including one that claimed God, not the courts, should punish those who leave Islam -- proved he had abandoned his religion. They pushed for the death penalty, but a lower court gave him a two-year sentence.

That decision provoked an outcry among religious conservatives. A council of 200 religious leaders in the southern city of Kandahar issued a fatwa , or religious edict, calling for Nasab to be hanged unless he repented. A division of the Supreme Court took a similar step.

Meanwhile, international human rights groups lobbied on Nasab's behalf, and Western embassies here indicated to the government that they were watching the case closely. President Hamid Karzai carefully straddled the line, expressing support for a free press but insisting he could not interfere in the decisions of an independent judiciary.

One of the appeals judges, Abdul Muqeem Atarud, said Thursday that he had heard from many people on both sides of the issue.

"We told them that if he did not repent, he would be executed. It's the only way," Atarud said. "It says in sharia that if someone repents" for leaving Islam, "he should be forgiven. So that is what happened." Sharia is the Islamic system of justice.

Nasab was still in prison Thursday pending completion of paperwork for his release. In a jailhouse interview last month, he vowed not to apologize and said the charges were trumped up by opponents who dislike him because he is from the ethnic Hazara minority.

Daoud Makaram, one of Nasab's attorneys, said Nasab told the court, "If my magazine caused any misunderstanding among the people, I apologize for that."

Prosecutors still have the right to appeal Nasab's release to Afghanistan's highest court, but several observers said they doubted the outcome would change.

"We are satisfied with what the appeals judges have decided," said Maulavi Ghulam Mohammed Gharib, leader of the Kandahar religious council.
© 2005 The Washington Post Company

What did the law actually authorize: problems with lack of specificity in statutes

December 20, 2005
'01 Resolution Is Central to '05 Controversy
By DAVID JOHNSTON and LINDA GREENHOUSE

WASHINGTON, Dec. 19 - At the heart of the debate over the legality of the program to eavesdrop on the international communications of American citizens without a court order is a Congressional resolution passed a week after the Sept. 11, 2001, hijackings that authorized the president to use force against those responsible for the attacks.

President Bush cited the resolution, the Authorization for the Use of Military Force, on Monday at his news conference. So did Attorney General Alberto R. Gonzales, who in a session with reporters said the Congressional measure, in addition to the president's inherent power as commander in chief, gave the government the power "to engage in this kind of signals intelligence."

The resolution itself is a single sentence, adopted unanimously by the Senate and with only one dissenting vote in the House of Representatives. It provides the president with sweeping but vaguely defined authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."

The resolution makes no mention of surveillance activity. Nor does it specify what is supposed to happen when American citizens, not themselves suspected of violating any law, come to the government's attention through actions taken under the resolution's terms.

"Nobody, nobody thought when we passed a resolution to invade Afghanistan and to fight the war on terror - including myself who voted for it - that this was an authorization to allow a wiretapping against the law of the United States," Senator Russell D. Feingold, Democrat of Wisconsin, said in an interview on the "Today" show Monday.

The precise limits on how much authority presidents may wield in a crisis has never been settled with absolute clarity, despite occasions when courts have served as referees in a contest of wills between the executive branch and Congress. This particular dispute is highly likely to remain in the political realm, because it is difficult to imagine how a challenge to the monitoring program could make its way into federal court. Any challenge would have to be brought by a person who had been a subject of the secret monitoring.

At his news conference on Monday, Mr. Bush was unapologetic, declaring that he would continue the electronic monitoring program as long as necessary.

The government's legal rationale for relying on the 2001 resolution is contained in classified legal opinions, but the thinking was outlined by Mr. Gonzales on Monday at his news conference. He referred to the Supreme Court's 2004 decision in the case of Yaser Esam Hamdi, an American citizen who challenged his detention as an enemy combatant.

The government's primary argument in the case was that the president's inherent authority as commander in chief obviated the need for any authorization by Congress. As an alternative argument, the government maintained that the resolution provided all the necessary authority, despite its omission of any reference to detention.

Justice Sandra Day O'Connor agreed, in a plurality opinion she wrote for three other members of the court, Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer. "Congress has in fact authorized Hamdi's detention" through the use-of-force resolution, Justice O'Connor said. Justice Clarence Thomas agreed in a separate opinion that provided a fifth vote for the theory.

But the O'Connor opinion was fairly nuanced, addressed only to what it called the "limited category" of individuals who fought with the Taliban against the United States in Afghanistan. And four other justices rejected the notion that the resolution could be read to authorize detention of an American citizen.

Justices David H. Souter and Ruth Bader Ginsburg said the resolution should be applied only in the context in which it was adopted, the use of military force. "Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power," the two justices said.

Justices Antonin Scalia and John Paul Stevens, in another separate opinion, also read the resolution narrowly, as not authorizing detention.

Prof. Peter Raven-Hansen, an authority on national security law at George Washington University Law School, said Monday that previous Congressional resolutions on the use of force had focused on powers to be exercised by the president on the battlefield or in close conjunction with military action.

"They are not an authorization for the homeland where law enforcement agencies are available and the courts are open to permit the surveillance of Americans that the president might think necessary," Professor Raven-Hansen said in an interview.

In addition, he said, the monitoring operation conflicted with provisions of the Foreign Intelligence Surveillance Act, which allows surveillance of suspected terrorists in the United States for three days without prior approval from a special court, as long as the approval is obtained later. "This completely transcends these statutory limits," he said.

Attorney General Gonzales, discussing the Foreign Intelligence Surveillance Act at his news conference, said the law applied "unless otherwise authorized by statute or by Congress." The use-of-force resolution, he continued, "constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

Asked at the news conference why the administration had not sought explicit legislative authorization through an amendment to the foreign intelligence law, he replied that "we were advised that that would be difficult, if not impossible."

* Copyright 2005The New York Times Company

The Second Amendment

Posted on Mon, Dec. 19, 2005


The amendment that means what it says

By TOM MONCURE
SPECIAL TO The Free Lance-Star

Sanford Levinson, a distinguished constitutional law professor at the University of Texas at Austin, wrote in the Yale Law Journal that the Second Amendment suffers from a lack of serious scholarship. Few law students envision the Second Amendment as an area of lucrative practice upon graduation. His article, "The Embarrassing Second Amendment," sent a shock wave through academia by suggesting that the amendment might actually mean what it says.

Issues involving guns have taken center stage in the cultural divide that separates Red and Blue America. Gun-control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms. However, history, buttressed by the Founders' clear understanding, dictates that the amendment guarantees this right to individual Americans.

The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939. Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use. This opinion suggests that any demonstrably military weapon should enjoy the protection of the Second Amendment.

The Supreme Court has conjured rights from the Constitution that do not exist in the text while disparaging those rights contained in the document itself -- leaving both sides of the gun debate cause for concern in any future rulings.

Oblique references in subsequent cases lend credibility to an individual-rights interpretation. The late Chief Justice William Rehnquist noted in a 1990 case, United States vs. Verdugo Urquidez, that the use of the phrase "the people" in the Bill of Rights was not used to avoid an "awkward rhetorical redundancy" but rather was chosen as a "term of art employed in select parts of the Constitution." He noted that the use of "the people" in the First, Second, Fourth, Ninth and 10th Amendments was within the context of protecting that class of persons who are part of the national community.

When adopted by the states, the Second Amendment generated no controversy. State and federal militia laws required citizens to keep arms and ammunition in their homes. These statutes specified everything from the number of cartridges to the amount of gunpowder that Americans were to keep on hand.

Arms and accouterment for militia service were exempted from levy for indebtedness, and failure to have the proper equipment could draw fines. The greater concern, as articulated by the great orator Patrick Henry, was how to provide guns to those who could not afford them. The bearing of arms was both a right and a responsibility of citizenship, with arms being legally denied to those who were not citizens.

The militia -- Richard Henry Lee, who put forth the motion to write the Declaration of Independence, described it as "the people themselves" -- stood in marked contrast to the hated standing army. Equally despised was a "select militia" that excluded general citizen participation.

The very idea that citizens might be barred from militia membership was itself an indication of tyranny. To the Founders, a "well regulated" militia was capable of being directed in proper military order, serving those functions otherwise performed by a regular army.

The collective-rights interpretation contends that the militia clause limits the scope of the right to keep and bear arms, guaranteeing only that that states can maintain a National Guard. The flaw of this interpretation is clear in the language of the Second Amendment, which secures the rights of the "people," and not the "states," to keep and bear arms.

The right to be armed for personal protection is well recognized by common law and preserved under the Ninth Amendment. The English Bill of Rights had guaranteed -- in 1689, only to Protestants -- arms for defense of self. William Blackstone wrote in his influential Commentaries: "Self-defense is justly called the primary law of nature so it is not, neither can it be, in fact, taken away by the law of society."

The U.S. Supreme Court reiterated, in the 2005 case of Castle Rock vs. Gonzales, that government cannot be held liable for failure to protect the lives of its citizens. Personal self-defense remains an individual responsibility.

The Second Amendment serves two higher callings. On a practical level, armed citizens provided the ultimate security against enemies and tyrants, without the cost of paid government forces. On a philosophical level, the Founders knew that our ultimate success depended on the character of the people. George Mason wrote in the Virginia Declaration of Rights that "no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue."

Much is assured us by the Bill of Rights, but much is also expected of us. The ideal citizen was self-determinative and self-reliant, while consciously dedicated to the common good. A willingness to defend self and country, with privately owned arms, was the crucial indicator of character.

Citizens possessed of both power and virtue were necessary to continue a republican form of government. Indeed, the American paragon is the Minuteman, typically represented as a yeoman farmer, who goes back to the plow when his martial duty is done.

The Second Amendment guarantees our sacred rights but also reminds us of our solemn responsibilities. Benjamin Franklin observed that "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty or Safety."

The Founders meant what they wrote even if, as Levinson indicated, some today may find it "embarrassing."

SECOND AMENDMENT

II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Bill of Rights

The Free-Lance Star in Fredericksburg, Va., has asked writers from across the country and the political spectrum for their takes on each of the U.S. Constitution's first 10 amendments.

The Star-Telegram will run the 16-part series through the end of the year.

Coming Tuesday

The Third Amendment and the issue of quartering troops, by law professor Andrew P. Morris.


--------------------------------------------------------------------------------
Tom Moncure, a former assistant counsel to the National Rifle Association, serves as senior counsel to the attorney general of Virginia. Readers may write to him at 900 E. Main St., Richmond, Va. 23219. He wrote this for The Free Lance-Star in Fredericksburg, Va.





--------------------------------------------------------------------------------

© 2005 Star-Telegram and wire service sources. All Rights Reserved.
http://www.dfw.com

The First Amendment

Posted on Sun, Dec. 18, 2005



Keeping the fire of free expression going

By GENE POLICINSKI
Special to The Free Lance-Star

NASHVILLE, Tenn. - Is there a more "American" trait than a citizen's voice speaking freely, either in words or in print?

Be it in the public square, a courtroom or a classroom, through a newspaper editorial or in a blog on the World Wide Web. Be it from a philosopher, leader, journalist, critic, concerned citizen, entertainer or charlatan.

Free expression is the sound and the handbook of liberty.

Democracy depends on many things, but principal among them are a citizenry that is both informed and involved in public debate on matters of public interest. Today's protesters for and against military involvement in Iraq, advocates and opponents on the abortion issue, those who see a need to increase taxes for education and those who see no need of a tax increase for any reason -- all these Americans are both the purveyors and the product of freedoms that guarantee their right to freely express themselves.

Still, as much as Americans revere their freedoms, there are times when we collectively forget their ongoing value and succumb to the temptation to ban or punish opinions freely expressed that are repellent to the majority.

The role and right of Americans to speak freely, in words and in print, has many times faced challenges. Even in the early days of the republic, government laws such as the Alien and Sedition Act of 1797, powerful officials and even rioting mobs would attempt to limit free voices and intimidate editors and reporters.

In the 1893 book The Making of a Newspaper, author Melville Phillips penned a plainspoken-yet-eloquent description of newspapers and free expression of his time:

"It looks so cheap and -- when one has gleaned the news from it -- so worthless; certainly the making of it does not seem to have cost much in time, labor, brains or money (but) the influence of American journalism reaches into every American home. A popular newspaper is in a sense, the voice of the people."

The First Amendment Center's "State of the First Amendment" national surveys track America's reverence for free expression. More than 90 percent of Americans say it is "essential" or "important" to be informed by a free press. And 98 percent say it is essential or important to "be able to speak freely about whatever you want."

But those same surveys show annually that in any given year, about 40 percent of Americans don't want the free expression they see and hear. They would restrict music that might offend "anyone" and block speech that might offend certain people or groups. About that same number say the press "has too much freedom."

Those citizens are free to express their views without the fear that government officials will punish them for those opinions. Also, in many cases, their view springs from good intentions: They would ban lyrics that denigrate women and words that insult or carry messages of hate. Perhaps they are motivated by the regular reports in the press of journalists who plagiarize material or invent sources or facts in the hope of glory, career advancement, or ratings.

But they need to be reminded that music carries many messages, that the antidote to hate speech is more speech in opposition -- that banning a tune, a tome or a tirade has never worked in the long run. They also need to be reminded that for most journalists, getting it right is far more important than getting it "first."

The town square may be too traffic-ridden in most cities for speakers to be heard today, but diverse voices still reach us each day in the virtual town square that is the editorial pages of American newspapers. There we converse, challenge and opine on topics as diverse as taxes and prescription drugs, baseball rules and stadium construction, women's suffrage and civil rights, immigration and education, religion and ethics, freedom and fishing licenses.

We also need to remember that through our nation's history, even those who have come to the United States with voices of a different language find expression through the freedoms of the First Amendment.

Specialized newspapers and journals have met the needs of ethnic, religious and racial groups. Examples are the anti-slavery North Star, created in 1847 by Frederick Douglas; El Clamor Publico, published by Francisco Ramirez beginning in 1855; and the Jewish Daily Forward begun in 1897 by Russian émigré Abraham Cahan. In Spanish, Russian, Croatian and many more languages, such publications share the common characteristic of a free people speaking freely on issues of interest and substance.

Thomas Jefferson wrote in 1787 that "the good sense of the American people is always going to be the greatest asset of the American government. Sometimes they might go astray, but they have the ability to right themselves. The people should always have the media to express opinions through. The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter."

Jefferson's "good sense" of the people can sometimes be subverted. Those who would censor in the name of their self-determined morality and those who would act on the basis of political correctness can find success in the short term through fear, intimidation or demagogy. But try as they might -- and some have tried mightily -- those forces have been unable to take away our most basic freedom: to speak and write and express ourselves as we will.

As we enter the 21st century, it seems unlikely that the forces against free expression will make a frontal attack. Rather, the threat is the creeping call to correctness, the quiet voice of comfort and the bluster of the false patriot who decries dissent as "un-American."

Those should not be the only voices in what Jefferson called "the marketplace of ideas." Citizens who believe in liberty must freely express themselves in support of freedom.

Recall what President Roosevelt said in 1938, as totalitarian governments were on the rise:

"If the fires of freedom and civil liberties burn low in other lands, they must be made brighter in our own. If in other lands the press and books and literature of all kinds are censored, we must redouble our efforts here to keep them free. If in other lands the eternal truths of the past are threatened by intolerance, we must provide a safe place for their perpetuation."

By speaking out and writing freely, we keep the fire of freedom burning.

The Bill of Rights

The Free-Lance Star in Fredericksburg, Va., has asked writers from across the country and the political spectrum for their takes on each of the U.S. Constitution's first 10 amendments.

The Star-Telegram will run the 16-part series through the end of the year.

Does Women's Prison Need a Perimeter Wall

The New York Times
December 19, 2005
In Minnesota, an Odd Request: Please Don't Fence the Inmates In
By KATE ZERNIKE

SHAKOPEE, Minn. - In 40 years here, Dennis Hron has never worried about the women living across the street - not even the murderers, the robbers and the kidnappers among them.

What Mr. Hron and other residents are up in arms about now is a plan to wall them off.

The women live in the Minnesota Correctional Facility, separated from the tidy suburban neighborhood that surrounds it by nothing more than a three-foot hedge, pruned to ground stubble in some spots in winter.

State corrections officials, concerned about the rising number of violent women in prison, want to cordon the facility off with a 12-foot fence. They argue that it is the only prison in the country with a maximum-security wing and no perimeter wall.

But residents and city officials say good fences would be wasted on good neighbors.

"They're better neighbors than neighbors," Mr. Hron said, referring to the 496 inmates in the prison, which in December included 79 killers, 5 kidnappers and 17 burglars. "The prison has been part of the community for a long time; a fence will divide that."

Residents of this suburb southwest of Minneapolis apparently did not consider the prison a blemish on the neighborhood when they bought their homes; over the years, most have come to see it as an asset.

Prisoners ran a day care center for a time and enrolled in high school classes by video link. They still play softball on a diamond just across the street from the local elementary school. The prison rents plots to local gardeners and allows neighbors to bicycle and jog on the grounds, despite the No Trespassing signs. People here still recall watching inmates milk cows and raise chickens when the prison kept a farm.

"They're out there every day walking, and there's no trouble," said Gary Hartmann, who has lived on a quiet street behind the prison for 28 years. "We're not concerned about safety issues. There have been a few walkaways, but nothing too violent. I don't see any reason to have a fence."

The warden, Rick Hillengass, counts seven escapes - or walkaways, as even he calls them - in the past 10 years. A young woman serving time for homicide fled to a Smashing Pumpkins concert in Minneapolis, then came back. (Rolling Stone magazine, Mr. Hillengass said, named her Most Dedicated Fan.)

Another made it only to the other side of the street, where she stuck out her thumb and was picked up by an off-duty police officer, who promptly delivered her back to the prison. Others have gotten a few blocks only to encounter the Minnesota River and realize that it is too wide to swim across - and that the only bridge out requires them to walk through downtown Shakopee, where in their prison clothes they would surely be spotted.

Mr. Hron recalled one inmate who changed into some clothes left hanging to dry on someone's back deck. "That's a little scary," he said. "But generally, there hasn't been a problem."

Still, state corrections officials say the neighbors are ignoring a new reality: more women are in prison now, and they are more violent.

While there are still 13 times as many men as there are women in prison, the women's population is growing faster. Nationally, the number of women grew an average of 4.7 percent a year from 1995 to 2004; in Minnesota, the increase was far greater, an average of 10.8 percent a year. The population at Shakopee, the state's only prison for women, has doubled since 1998.

And while nationally men are more likely than women to be in prison for violent crimes, violent offenders accounted for half the growth in female prisoners from 2001 to 2004, according to the Bureau of Justice Statistics.

That is only likely to grow: while the number of men arrested for violent crimes declined 20 percent from 1995 to 2004, according to the Federal Bureau of Investigation, the number of women arrested for such crimes increased by 3 percent.

"We feel good about the fact that we've always had a very good relationship with the community," Mr. Hillengass said. "We're very concerned about trying to keep that. But I think a lot of people in the community think we house only low-level offenders. We don't."

The prison has been here, in different configurations, since the 1920's, and Shakopee has grown up around it: at 32,000 residents, this is one of the fastest-growing Minneapolis suburbs. The prison sits a few blocks from downtown in an established neighborhood of ranch houses, on a plot dotted by crabapple trees and pines, reminders of the farmland this once was.

The prisoners live in brick "cottages," and the grounds include a greenhouse and a large fitness center. Cameras on the perimeter watch the women on their daily outings. The only fence, however, is the backstop behind the softball diamond, which is across the street from the elementary school, a water tower and a cemetery. (The cemetery and the water tower have fences.)

"It's beautiful; it looks like a college campus," said David Hart, who lives across a bike path on the edge of the prison. "You put up a fence and searchlights, and it changes people's perception of what's there."

But the residents say they are concerned about more than property values. The average inmate gets out in six years, and only 12 are serving life sentences.

"We have to think about assimilating them back into society," said Mr. Hron, a former county commissioner. "Now they come out and play ball, they see us cutting our lawns or coming and going, they see what life is like out there, that people are enjoying it. It gives them a good picture, something to aspire to."

Mayor John Schmitt suggested that the fence might actually inspire more walkaways. "If suddenly you're inside a wall, and you can't see your neighbors," Mayor Schmitt said, "it will give you other thoughts. Your natural inclination is to say, 'I want to get outside those walls.' "

The fence would cost $4 million to $6 million. But at a recent meeting, neighbors told the warden that it would be a waste of taxpayer money; they were unimpressed by the statistics on escapes. "Five million for seven people in 10 years?" Mr. Hart said afterward.

In a nod to the community, state prison officials are suggesting that the fence be made of black metal pickets between carved stone or concrete posts - "the kind of fence you might find in a gated community," Mr. Hillengass said - with another fence 20 feet inside for extra protection. Lights would be positioned downward to avoid "the ball-field effect," he said, and there would be no concertina wire.

"If somebody gets out of this facility and causes some serious harm," the warden said, "we would be sitting here in a position of explaining why we hadn't done something about it - why we didn't have a system that tried to keep people inside. As sensitive as we are to the community, we have a public protection responsibility that goes beyond the neighborhood."

Now, visitors often toss drugs in the bushes for inmates, Mr. Hillengass said. And many of the women have come from violent relationships, reflected in restraining orders they have taken out against their partners. "That's an additional reason: to keep people off as well as people on," he said.

Mayor Schmitt remains unconvinced. On a recent tour, he pointed out that the fence would be almost as high as the unobtrusive, one-story prison buildings there now.

"I think it would look very forbidding, certainly not in keeping with a residential neighborhood," he said. "If they want a 12-foot fence, I would encourage them to move to the country."

* Copyright 2005The New York Times Company

NY Former Mayor on the Patriot Act

The New York Times
December 17, 2005
Op-Ed Contributor
Taking Liberties With the Nation's Security
By RUDOLPH W. GIULIANI

YESTERDAY the Senate failed to reauthorize the USA Patriot Act, as a Democratic-led filibuster prevented a vote. This action - which leaves the act, key elements of which are due to expire on Dec. 31, in limbo - represents a grave potential threat to the nation's security. I support the extension of the Patriot Act for one simple reason: Americans must use every legal and constitutional tool in their arsenal to fight terrorism and protect their lives and liberties.

The attacks of Sept. 11, 2001, made clear that the old rules no longer work. The terrorists who attacked us seek to kill innocent men, women and children of all races and creeds. They seek to destroy our liberties. They willingly kill themselves in their effort to bring death and suffering to as many innocents as they can, here in this country or anywhere in the world where freedom has a foothold.

In October 2001, after six weeks of intense scrutiny and debate, Congress passed the Patriot Act overwhelmingly (98 to 1 in the Senate and 356 to 66 in the House). We had already received clear signals about our enemies' intentions, in the first attacks against the World Trade Center in 1993, the bombings of our embassies in Kenya and Tanzania in 1998 and the attack on the Navy destroyer Cole two years after that. Despite the abundance of warning signs, it took Sept. 11 to wake us to the dangers we face.

The central provisions of the Patriot Act allow law enforcement and the intelligence community to share information. This might seem elementary, but for years law enforcement had been stymied by a legal wall that prevented agencies from sharing information. For four years now, inter-agency collaboration, made possible by the Patriot Act, has played an important role in preventing another day like Sept. 11. The act's provisions helped make possible the investigations in Lackawanna, N.Y., and Portland, Ore., in which 12 people were ultimately convicted for attempts to aid Al Qaeda and the Taliban.

So what happened in Washington? The House voted on Wednesday to renew the act; it stalled in the Senate. If the Senate fails to approve the extension, the government will be forced to revert in many ways to our pre-Sept. 11 methods. Sixteen provisions of the Patriot Act are set to expire on Dec. 31, including the key information-sharing ones.

It is simply false to claim, as some of its critics do, that this bill does not respond to concerns about civil liberties. The four-year extension of the Patriot Act, as passed by the House, would not only reauthorize the expiring provisions - allowing our Joint Terrorism Task Force, National Counterterrorism Center and Terrorist Screening Center to continue their work uninterrupted - it would also make a number of common-sense clarifications and add dozens of additional civil liberties safeguards.

Concerns have been raised about the so-called library records provision; the bill adds safeguards. The same is true for roving wiretaps, "sneak and peek" searches and access to counsel and courts, as well as many others concerns raised by groups like the American Library Association and the American Civil Liberties Union.

Given these improvements, there is simply no compelling argument for going backward in the fight against terrorism. Perhaps a reminder is in order. The bipartisan 9/11 commission described a vivid example of how the old ways hurt us. In the summer of 2001, an F.B.I. agent investigating two individuals we now know were hijackers on Sept. 11 asked to share information with another team of agents. This request was refused because of the wall. The agent's response was tragically prescient: "Someday, someone will die - and wall or not - the public will not understand why we were not more effective."

How quickly we forget.

Rudolph W. Giuliani was mayor of New York from 1994 through2001.