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Blog Scan

Illegal CIA Interrogations:  Jonathan Adler has a post at Volokh Conspiracy quickly comparing two pieces that discuss the Justice Department's Office of Professional Responsibility recommendation that the federal government reopen potential cases against CIA employees for using illegal interrogation techniques on terror-related detainees.  At the New York Times, David Johnston writes that the recommendation comes as the DOJ stands ready to disclose "voluminous details on prisoner abuse that were gathered in 2004 by the C.I.A.'s inspector general but have never been released."  The report makes it "all but certain that the appointment of a prosecutor or other concrete steps will follow, posing significant new problems for the C.I.A."  But at the Washington Post today, Jeffrey H. Smith gives six reasons not to prosecute the CIA's interrogators.  Smith concludes, "prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight."

Constitutional Justification for Juvenile LWOP:  Kent reported back in early August that The Heritage Foundation would hold an event, Adult Times for Adult Crimes, on August 17th.  Today, Doug Berman has a post at Sentencing Law and Policy discussing the paper that was released by Charles Stimson and Andrew M. Grossman at that event.  Doug Berman posts a link to the report, Adult Times for Adult Crimes: Life Without Parole for Juvenile Killers and Violent Teens, as well as the executive summary.  Berman comments that the "lengthy report reads like an amicus brief in support of states seeking to defend the use of LWOP for juve offenders in the upcoming SCOTUS cases Graham and Sullivan."

Interesting Story on Medical Furloughs - California Should Take Note:  Yesterday, Doug Berman posted this Montgomery Advertiser article on Sentencing Law and Policy.  The article, by Markeshia Ricks, reports on results observed in Alabama since it passed a law that would allow terminally ill inmates a chance to die at home. The state hoped that it would save the state money.  The Department of Corrections has yet to realize any significant savings.  The state has exempted sex offenders and those convicted of capital murder from potential release, and within one year, has only released three prisoners.   But even those who are eligible for release must be placed, by the state, in some sort of care facility.  Ricks quotes Larry Spencer, an assistant professor at Alabama State University.  He says, "This is one of those things that (the) state has put in place to alleviate the severe overcrowding, but the other factor is the cost for medical care.  The cost of medical care can just tear up your budget."  And apparently, that's what's happening in Alabama. (Page 2 of the article details the higher costs of outpatient medical care.)
Detention Dilemma:  Late on Friday night, SCOTUSblog reporter Lyle Denniston posted on a detainee case that illustrates how "Pentagon and U.S. intelligence agencies are having [trouble] in trying to justify in court the continued holding of some of the prisoners at Guantanamo Bay, Cuba."  According to Denniston, last Monday a Senior District Judge, Gladys Kessler, ordered the release of Yemeni national Mohammed Al-Adahi.  On Friday, her 42-page, redacted opinion explaining that ruling was made public.  Judge Kessler noted that the evidence against Al-Adahi appeared "sensational and compelling," but ultimately ruled it was not enough to keep him detained at Guantanamo. Denniston writes, "Between the lines of the Kessler opinion, it was clear that government officials believed they had a very strong case for keeping Al-Adahi imprisoned," but Judge Kessler's demanding definition of who may be detained allows for Al-Adahi's release.  Al-Adahi is related to bodyguards for Bin Laden (including his brother-in-law), he stayed at an al-Qaida guesthouse for one night and attended the Al Farouq [Al-Qaeda] training camp for seven to ten days (he was later expelled), but without "reliable evidence" that Al-Adahi served as a trainer at Al Farouq or fought for al-Qaida, the government could not continue to detain him.  Kessler ordered government officials to use diplomatic measures to find a way to release him to another country.

SCOTUS Preview - Maryland v. Shatzer At CrimProf Blog, Peter Stockburger previews the Supreme Court case Maryland v. Shatzer.  The case will address whether Edwards v. Arizona, which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to interrogation that takes place nearly three years after the initial interrogation and invocation of right to counsel.  He nicely sums up the facts and presents the arguments of each brief.  Our brief in Shatzer can be found here.

A Hopeful Request:
  On a tangential, SCOTUSwatcher note, Lyle Denniston reports that the Wyoming Liberty Group and Goldwater Institute Scharf-Norton Center for Constitutional Litigation has requested one minute of oral argument time in Citizens United v. Federal Election Commission (08-205).  The author of the motion, Benjamin Barr, wants a role in Citizens to attack the FEC for ways in which it has "misinterpreted" campaign finance law, and has "beffuddled or contradicted itself on key free speech principles." 

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