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Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Because no one
is above the law!


Tom Fitton's Judicial Watch Weekly Update

Weekly Update – Supreme Court Rulings, the Good and the Bad

June 27, 2008

From the Desk of Judicial Watch President Tom Fitton:

Supreme Court 1 for 2 in Landmark Rulings

In recent weeks, I’ve taken special care to highlight some recent court decisions that show why it is so important to nominate and confirm conservative jurists to the bench. This week, with two landmark Supreme Court rulings, this point was made ever more clear: At least one more dependable conservative vote is sorely needed on the High Court as Justice Kennedy seems to swing which ever way his personal whims lead him. Now to the decision:

High Court Preserves Second Amendment Rights…

According to the Associated Press:

"The Supreme Court ruled Thursday that Americans have a right to own guns for self-defense and hunting – the justices’ first major pronouncement on gun rights in U.S. history. The court’s 5-4 ruling struck down the District of Columbia’s 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment."

The decision was 5-4. Justice Kennedy, taking over for the retired Justice Sandra Day O’Connor as the swing vote, thankfully sided with the conservative block of Chief Justice Roberts and Justices Scalia, Thomas and Alito.

According to the Court’s opinion written by Justice Scalia, "We start…with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

Amen to that.

The Second Amendment reads: "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." Surprisingly, the Supreme Court had never conclusively interpreted the right to own a firearm in the more than two hundred years since the Second Amendment was ratified in 1791.

The District of Columbia passed a law in 1976 effectively banning handgun ownership in city limits. Dick Heller, an armed security guard and D.C. resident, challenged the law after his handgun application was rejected. An appellate court sided with Heller, ruling that the D.C. ban on handguns was not compatible with the Second Amendment.

The issue for the Supreme Court was simply this: Does an individual U.S. citizen have a right to own a gun, or is this right only somehow linked to membership in a state militia. That issue has been settled, albeit with a dangerously slim margin.

Judicial Watch is considering a more active role in this area, as this decision marks the beginning of many court fights over our Second Amendment rights. Already, various local officials have indicated, despite the Supreme Court ruling, they aim to restrict gun rights in ways that are sure to raise additional constitutional questions. Those who value the Second Amendment must be prepared for further litigation.

…But High Court Outlaws Death Penalty for Child Rapists

It wasn’t all good news this week.

On Wednesday, in yet another 5-4 decision, the Court outlawed executions for twisted miscreants who rape little children (Kennedy v. Louisiana, 07-343). The State of Louisiana had sentenced Patrick Kennedy to die for brutally raping his 8-year-old step-daughter. (One expert in pediatric forensic medicine said the victim’s injuries were the most severe he had ever seen from a sexual assault. They even required emergency surgery.)

This time, Justice Kennedy joined the liberals on the court, who ruled that despite the brutality of the crime, the sentence violated the Eighth Amendment ban against "cruel and unusual punishment." In a morally monstrous ruling, the Court suggested its decision reflected "evolving standards of decency that mark the progress of a maturing society." In terms of naked judicial activism, one can cite few better examples.

How could any judge advocate leniency for a child rapist and spin it as both "decent" and "mature?"

This decision was criticized by both Senator McCain and Senator Obama.

Justice Alito, noting the sweeping impact of the court’s decision, wrote in his dissent: "The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be."

Before the ruling, six states allowed the death penalty for convicted child rapists. Now there are none. And you can thank the liberal activists on the court for that.

A Special Report on Guantanamo Bay

As I mentioned a couple of weeks ago, Judicial Watch was selected by the Pentagon to monitor the arraignments at Guantanamo Bay of five terrorist prisoners allegedly involved in the 9/11 attacks. Judicial Watch Director of Litigation Paul Orfanedes made the trip to counterbalance the presence of the ACLU and other radical groups supporting the terrorists.

I promised you a report once Paul returned from his trip. The following is an excerpted transcript of an interview with Paul that will appear in an upcoming issue of The Verdict, Judicial Watch’s monthly newsletter. (By the way, if you click here and donate $25 or more to Judicial Watch, you’ll get a subscription to the Verdict free of charge.)

Why did Judicial Watch feel it was important to monitor the detainee arraignments at Guantanamo Bay?

ORFANEDES: The detention and punishment of unlawful enemy combatants and terrorist suspects at Guantanamo Bay, at its core, is a rule of law issue, which is what we do. Originally, there were two types of legal institutions in place that could have been used to deal with the detainees, the system established by the Uniform Code of Military Justice and the criminal justice system…Questions have been raised about the integrity of this new system, so we felt it was important to observe it in action for ourselves. Given Judicial Watch’s other work on security and terrorism, the issues at play at Guantanamo also fall within the scope of Judicial Watch’s mission.

During your time at Guantanamo Bay, what were some of your most important observations?

ORFANEDES: Some in the media have criticized the military commission process, leaving the impression that it is disorganized and lacks impartiality. What was striking to me during my trip was that I found the complete opposite to be true. I witnessed a deep commitment on the part of the military lawyers participating in the proceedings, especially the defense attorneys. They defended their clients vigorously and articulately. If anything, they seemed to have an even greater sense of commitment to their clients because they were military officers…

What is your reaction to the Supreme Court’s recent ruling which will allow detainees to make use of the US court system to challenge their status?

ORFANEDES: There really are a number of legitimate, competing interests…The fact is we are in uncharted territory. And it is taking a lot of time to create a system that addresses all of the different, competing concerns, including concerns about fairness. The slim 5-4 decision shows we’re not quite there yet.

What are the negative consequences of not having this resolved?

ORFANEDES: The biggest negative impact, I think, relates to public perception worldwide. Whether earned or not, the United States has received a bad name because of Guantanamo, and the longer it goes on, the worse it gets. Not only does the controversy undermine confidence in the U.S. on the part of our allies, but it serves as a rallying point for people who want to attack the United States…

Aren’t these negative perceptions a byproduct of misinformation passed on by the press worldwide?

ORFANEDES: They are. And I think it has more to do with a lack of familiarity with the legal process than problems with the process itself…

What happens next with respect to these arraignments?

ORFANEDES: It’s a mess. There is no other way to put it. Our legal institutions were not well equipped to deal with all of the issues raised by detaining and punishing unlawful enemy combatants picked up during the war on terror. Following the 9/11 attacks, we made substantial changes to the structure of the federal government to accommodate these new threats, creating the Department of Homeland Security. Adapting our legal institutions to handle these new circumstances is taking much longer…

Court Rules Special Order 40 Lawsuit Cannot Proceed to Trial

We are analyzing our next steps this week after an unfortunate Los Angeles County Superior Court ruling that Judicial Watch’s taxpayer lawsuit against the Los Angeles Police Department’s Special Order 40, an illegal alien sanctuary policy, cannot proceed to trial (Judicial Watch, Inc. v The Los Angeles Police Department et. al, Case No. BC349040). Here’s the statement I issued to the press:

"Special Order 40 is a dangerous sanctuary policy that clearly violates federal immigration laws and it should be stopped. Simply put, federal law gives every police officer the discretion to communicate with federal authorities about an individual’s immigration status. Special Order 40 makes it harder for federal authorities to enforce our nation’s immigration law. This "don’t ask, don’t tell" policy benefits no one but lawbreakers and places LA residents at risk. We do not want any more innocents to die because of Special Order 40. We will consider an appeal and additional legal challenges."

We had planned to go to trial on June 30, but the court ruling changed that. The ruling referenced the California Supreme Court’s recent gay marriage ruling in its opening and then suggested that the LAPD policy that prevents officers from "initiating police action" with respect to immigration somehow does not prohibit a police officer from "communicating" with the feds about someone’s immigration status. We respectfully disagree.

As I mentioned, we are considering all our legal options against Special Order 40. Not only is an appeal on the table, but additional legal challenges. In LA, we were fighting not only the government, but the ACLU. The ACLU won’t give up and neither should we. In the meantime, Judicial Watch continues to battle illegal alien sanctuary policies across the country. We’ve had a number of critical victories in this regard. Click here to read more.

Until next week…

Tom Fitton

Judicial Watch is a non-partisan, educational foundation organized under Section 501(c)(3) of the Internal Revenue code. Judicial Watch is dedicated to fighting government and judicial corruption and promoting a return to ethics and morality in our nation’s public life. To make a tax-deductible contribution in support of our efforts, click here.


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