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The Terrorists' Court is the title of this NYT op-ed by former AAG Jack Goldsmith and Georgetown Prof. Neal Katyal. "The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure."

The House Judiciary Committee is holding a hearing on the Libby commutation. Of course, clemency is an entirely discretionary power vested in the executive branch, so any claim to an oversight responsibility here is bogus. However, there may be some interesting points made on federal sentencing generally. All but one of the witness statements are on the site as of this writing, and the last will probably be added later.

Ninth Circuit - To Split or Not to Split? Vanderbilt Law School professor, Brian T. Fitzpatrick has an interesting article in today’s Los Angeles Times titled “Disorder in the court.” Fitzpatrick, a former clerk on the Ninth Circuit and U. S. Supreme Court points out that the justices spent an undue portion of the Court’s last term overturning Ninth Circuit Court of Appeals cases. In the last term, the Supreme Court reversed or vacated a total of 19 times out of 22 cases that were reviewed. As reported, lawyers, judges and legal scholars are in favor of splitting the Ninth Circuit because it “is so large and unwieldy.” Some who also propose the split do not see a relation between the size of the Ninth Circuit and the rate of reversals, but Fitzpatrick provides a mathematical explanation for a connection between size and the likelihood of out-of-the-mainstream results.

Cockfighting and Free Speech: Advanced Consulting and Marketing, which airs cockfights online, filed suit yesterday in Miami federal court claiming a ban on video of cockfighting violates the First Amendment. The company operates an online website that airs cockfighting that takes place in Puerto Rico, where it is legal. A lawyer for the company is arguing that the airing and selling of this video online is not crime. As reported by Adam Liptak with The New York Times, legal experts stated, “the question of whether the First Amendment allows the government to ban depictions of illegal conduct, as opposed to the conduct itself, is a difficult one.” Eugene Volokh is quoted saying the statute is unconstitutional, and he has a post on it at VC.

A scheduled execution in Texas was postponed yesterday evening for death row inmate Rolando Ruiz. A three-judge panel voted on the stay in the Fifth Circuit Court of Appeals for Ruiz. Two judges stated more time was needed in determining whether Ruiz’s argument that jurors should of been allowed to take into account the fact that he had a poor childhood and suffered from a substance abuse problem in the determination of his sentence. In prior appeals, Ruiz’s state appointed attorney failed to indicate this information to the jury. Ruiz would of become the 19th death row inmate executed in the state of Texas for this calendar year. AP writer Michael Graczyk has the story here and an earlier story here. On Monday, Crime and Consequences first reported on this murderer, who was hired to kill the victim by her husband and brother-in-law in a scheme to collect insurance money of the deceased.

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In all fairness, while it is true that Congress has no oversight authority over an executive clemency proceeding--it is also true that an executive is subject to oversight by the electorate on this issue. Although President Bush himself is a lame duck and cannot be answerable directly, hearings on the issue will place an appropriate political focus on this topic. The electorate can decide how to factor the clemency power into their evaluation of the Presidential candidates in 2008. In this sense, unlike the last minute clemency decisions we routinely see in past administrations, the President can actually be held accountable for this decision to the extent that it is an issue for his party in the next election.

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