Space shuttle astronaut Mike Massimino has become the first person ever to use Twitter from space.
- Garry J. Wise, Toronto
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Brian Mulroney's testimony began at the Oliphant Commission yesterday. Video, via CBC:
Full video of Mr. Mulroney's testimony is available at CPAC.
The Toronto Star has two wrap-ups of the former Prime Minister's evidence: Mulroney Takes Jabs at Harper and Vintage Brian Mulroney has Regrets
- Garry J. Wise, Toronto
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Jesse (the Governing Body) Ventura, former Minnesota Governor, Navy Seal and professional wrestler:
I would prosecute every person who was involved in that torture. I would prosecute the people that did it, I would prosecute the people that ordered it, because torture is against the law... I was waterboarded [in training] so I know... It is torture...I'll put it to you this way: You give me a waterboard, Dick Cheney and one hour, and I'll have him confess to the Sharon Tate murders.
- Garry J. Wise, Toronto
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- Garry J. Wise, Toronto Visit our Toronto Law Firm website: www.wiselaw.net EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG I want to talk about tissues and the law... what I want to know is if the nominee has ever had a box of tissues on his or her desk. For clients.
Well said.
I want a nominee that knows what it's like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.
I want a nominee to know what it's like to see real people -- not political philosophies or corporate giants trying to add a few cents per share to their earnings -- in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it's like to be the underdog against corporate or government interests.
I want a nominee to know what it's like to make the rent. To pay an employee. From their own pocket and not someone else's. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.
The battle between the National Hockey League and Canada's Blackberry billionaire, Jim Basillie, over the future of the Phoenix Coyotes franchise is shaping up as one of the most interesting - and important - professional sports litigation cases in recent history.
The battle for control of the Phoenix Coyotes has simmered for the moment, but will pick up with a vengeance when the opposing sides re-convene in the United States Bankruptcy Court for the District of Arizona on May 19th. If Judge Redfield T. Baum rules that the Coyotes belong to Jerry Moyes, and can therefore file for Chapter 11 bankruptcy protection and be sold to the highest bidder [Jim Balsillie], the NHL will surely appeal the decision, delaying not only the potential movement of the franchise, but the timely completion of a schedule for the 2009-10 season.
It’s anyone’s guess as to how the dispute will be won, but I am most intrigued by Balsillie’s accusation in a separate claim that the NHL is running an “illegal cartel”. For many years, I have wondered about the unilateral declaration of territorial claim that is common in all professional leagues, but doesn’t appear to be constitutional. In a free-enterprise system, competing factions are encouraged to exist in proximity to one another; it’s the reason a Burger King restaurant can set up shop across the street from an existing McDonald’s franchise. Such an arrangement satisfies anti-trust regulations by discouraging monopolistic tendencies.
Professional sport, however, is largely built on monopolizing lucrative territory; its clubs command astronomical indemnification from groups that wish to invade turf that is already “owned”. It is believed that team and league executives liberally collude to prevent competition – a charge, in the NHL, that is frequently brought against the Maple Leafs and the commissioner’s office. This appears to contravene the rules the rest of our society lives by and it isn’t clear how it might withstand a vigorous legal challenge. What is clear is that such a challenge could be fashioned by money-bags Balsillie, and there’s no telling how it might impact the accepted rule in pro sport.
The reversal of such a long-term practice could affect the most routine elements of sport – those which are overlooked in legal circles for being internally policed...
It's a Canadian conceit that placing franchises in Winnipeg, Quebec City and southern Ontario is a patriotic imperative, while hoping the sport will bloom in the Arizona desert or flourish under Florida palm trees is outright lunacy.
...Permitting an undeniably bright, deep-pockets entrepreneur like Balsillie to dictate his own terms of entry and set up shop where he darn well pleases could do untold damage to the dynamic around the board table. It beggars common sense to think the governors are anxious to welcome a partner whose approach to franchise ownership is Robert Irsay meets Al Davis.
Irsay was the man who literally packed up the assets of the Colts in Baltimore back in March 1984 and executed the old midnight move to Indianapolis.
Davis ("Just win, baby") successfully used anti-trust legislation to move his Raiders from Oakland to Los Angeles and back again.
There was nothing the NFL could do about it.
Irsay and Davis succeeded, all right, but that sure doesn't make them role models.
Perhaps, but isn't it clear that the real reason for Mr. Balsillie's aggressive tact is that he's become justifiably convinced the NHL will never, under ordinary circumstances, award a franchise to Hamilton. Plainly, the unbending and long-established territorial-exclusivity claims of the Toronto Maple Leafs and Buffalo Sabres organizations are not far beneath the surface of this litigation.
The pending Coyotes litigation will likely put these territorial rights - and the NHL's ability to protect them - to their ultimate, and perhaps overdue, legal test.
- Garry J. Wise, Toronto
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The judge presiding over the criminal trial of Ottawa mayor Larry O'Brien has blocked the use of television cameras, but given the go-ahead for live blogging and the use of Twitter.
Judge Douglas Cunningham... shot down the CBC's bid to have cameras follow the trial in real time, but agreed to a bid by Canwest News Service to have a reporter file instantly to a popular social networking site from within the courtroom. The judge's ruling effectively opens the gates to all media at O'Brien's trial to file real-time text stories by wireless device.
..."What we are talking about here is instant text transmission to the blogosphere, but that is the world in which we live," said Cunningham.
..."I ... recognize that some private information or protected information could inappropriately be disclosed," said the judge.
"But I'm afraid that's a risk I'll have to take, recognizing as I do the calibre of counsel I have before me in this case."
- Garry J. Wise, Toronto
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From Think Progress: Gonzales And Ashcroft Disagree With Rice: Just Because A President Says It Does Not Make It Legal
- Garry J. Wise, Toronto
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From the Washington Post: Now, the recent release of Justice Department memos authorizing the use of harsh interrogation techniques has given Graner and other soldiers new reason to argue that they were made scapegoats for policies approved at high levels. They also contend that the government's refusal to acknowledge those polices when Graner and others were tried undermined their legal defenses - Garry J. Wise, Toronto Visit our Toronto Law Firm website: www.wiselaw.net EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
Graner remains locked up at Fort Leavenworth, Kan., about halfway through a 10-year prison sentence for detainee abuse, assault and dereliction of duty. His lawyer said this week that he is drafting appeals arguments centered largely on the revelations in the memos and a newly released congressional investigation into the interrogation practices
...Charles Gittins, a Virginia lawyer who represents Graner, said he has been fuming since reading the memos. He said he has long believed that there was no way Graner and the other Army Reservists invented techniques such as stress positions, leashing and the use of dogs, and he says the documents confirmed his suspicions.
Jack Kemp, former Republican Vice-Presidential nomineee, U.S. Congressman and CFL and NFL quarterback has died at age 74.
- Garry J. Wise, Toronto
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Michael Ignatieff has offically taken the reins as leader of the Liberal Party of Canada.
- Garry J. Wise, Toronto
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The Financial Post looks at the first U.S. libel suit arising from a Tweet. The claim stems from allegedly defamatory comments made on Twitter by rocker Courtney Love:
Can you really libel someone in 140 characters or less?
The short answer, you could quickly tweet, is yes. The first libel suit against a Twitter user was launched in March, in the United States. It joins a growing class of suits against bloggers, message-board posters and social network users.In the case of the first lawsuit, notorious rocker Courtney Love is being sued by designer Dawn Simorangkir, also known as Boudoir Queen, who alleges Ms. Love made defamatory comments about her in a tweet.
While Twitter is new ground, lawsuits related to blogs are on the rise. The New York-based Media Law Resource Center says it is tracking 258 Web-related U. S. lawsuits, a sharp increase from 110 a year ago. Some of the lawsuits involve defamation, others deal with copyright infringement or fake profiles on social network sites such as MySpace and Facebook. The majority of Internet-related lawsuits are connected to blog postings, says Eric Robinson, a staff lawyer with the Media Law group.
A year ago, blog lawsuits were a novelty, but they have been growing quickly. And so have the resulting awards -- one as high as US$12.5-million. "The Internet was the Wild West, but now the sheriffs are coming in," Mr. Robinson says.
- Garry J. Wise, Toronto
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From an editorial in today's Globe and Mail:
If Canadians could cram en masse into the bitter courtrooms where child-custody disputes play out, there might be fewer nasty divorces. Since they can't, they should be allowed to read about them, which is why an Ontario judge was right to reject a request from the provincial Office of the Children's Lawyer for a gag order on the lawyers and family members in a notorious case of "parental alienation syndrome." A cautionary tale that no one can hear is not much good to anyone.
...All Canadians have an interest in making sure that the children of high-conflict divorce are protected, and that those charged with protecting them, including the courts and the Office of the Children's Lawyer, do good, and not harm. That is why the courts are open. The freedom of the press belongs not only to the media, but to all Canadians.
- Garry J. Wise, Toronto
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Ken Adelman, former chair of the Reagan-era Arms Control and Disarmament Agency:
"I'm having trouble figuring out why staunch conservatives aren't as outraged by the torture memos and practices as the American public. ... It's somewhat outrageous for real conservatives not to be outraged by all this. Conservatism has never been, and should not become now, the pro-torture movement...
Torture is not only immoral; it's not conservative. And conservatives shouldn't be defending it."
- Garry J. Wise, Toronto
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The Canadian Bar Association once again has called for the repatriation of Omar Khadr.
The CBA is a national association representing 38,000 jurists across Canada. We work to promote the Rule of Law and improve the administration of justice in Canada and around the world. It is in this light that we have protested Mr. Khadr’s subjection to the military tribunal process in Guantánamo Bay and called for his repatriation. We take no position on Mr. Khadr’s guilt or innocence. Our concern is that he receive a fair trial in accordance with all procedural protections and special considerations to be afforded a minor, as required by domestic and international law. Canada’s justice system is well equipped to fairly and openly assess Mr. Khadr’s criminal culpability, in a manner that reflects his status as a minor at the relevant time.
...Yesterday, Canada’s Federal Court ruled the ongoing refusal of the Government of Canada to request Mr. Khadr’s repatriation to Canada “offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter”. It ordered the government to seek Khadr’s repatriation as soon as practicable.1
...Prime Minister, the time has come for the Canadian government to advise the U.S. that it is willing to negotiate the terms of Mr. Khadr’s repatriation to Canada to face Canadian justice. In turn, Mr. President, we urge the U.S. government to negotiate the terms of Mr. Khadr’s repatriation with the Canadian government and to transfer available evidence respecting his conduct to the Canadian government. We urge you to come to an agreement that recognizes international human rights obligations, due process and the Rule of Law, and the desirability of ensuring the national security of both countries.
- Garry J. Wise, Toronto
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Judge Bybee... said: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”
Other administration lawyers agreed with those conclusions, Judge Bybee said.
“The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”
Let me give a simple small example, helpfully laid out here. Bybee was able to defend waterboarding as non-torture in a legal memo ostensibly providing objective analysis of the case history of the torture technique in the US. Among the obvious precedents for such a decision was the most recent case - when the Reagan administration Justice Department prosecuted a Texas sheriff and his deputies for waterboarding a suspect to get a confession in 1983:
At the trial of the Texas sheriff, Assistant US Attorney Scott Woodward said the prisoners who were subjected to waterboarding were not "model citizens," but they were still "victims" of torture. "We make no bones about it. The victims of these crimes are criminals," Woodward said, according to a copy of the trial transcript. One of the "victims" was Vernell Harkless, who was convicted of burglary in 1977. Gregg Magee, a deputy sheriff who testified against Sheriff Parker and three of the deputies said he witnessed Harkless being handcuffed to a chair by Parker and then getting "the water treatment."
"A towel was draped over his head," Magee said, according to court documents. "He was pulled back in the chair and water was poured over the towel." Harkless said he thought he was "going to be strangled to death," adding: "I couldn't breathe." One of the defendants, Deputy Floyd Allen Baker, said during the trial that he thought torture to be an immoral act, but he was unaware that it was illegal. His attorneys cited the "Nuremberg defense," that Baker was acting on orders from his superiors when he subjected prisoners to waterboarding.
The Reagan Justice Department - back when Republicans opposed torture - did not buy this defense and neither did a jury. They convicted the the deputy on three counts of civil rights and constitutional violations. Now: this case occurred before the UN Convention on Torture went into effect, but any good faith legal memo explaining the history of this particular torture technique would surely have cited it. It's easily findable with Google, let alone with the research resources available to the Office Of Legal Counsel.
I honestly cannot imagine how a serious legal memo with respect to a very rare torture technique would not cite the most recent domestic precedent, finding that it violated the constitution. Can you?
Today, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) sent a letter to Judge Jay Bybee inviting him to testify about his “views” about torture and his “role” in drafting the torture memos. “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House,” Leahy wrote. “I look forward to your cooperation and your testimony.” Read Leahy’s letter (pdf) here.
MADRID – A Spanish judge opened a probe into the Bush administration over alleged torture of terror suspects at Guantanamo Bay, pressing ahead Wednesday with a drive that Spain's own attorney general has said should be waged in the United States, if at all.
Judge Baltasar Garzon, Spain's most prominent investigative magistrate, said he is acting under this country's observance of the principle of universal justice, which allows crimes allegedly committed in other countries to be prosecuted in Spain.
He said documents declassified by the new U.S. government suggest the practice was systematic and ordered at high levels of the US government.
...Now, Garzon is opening a separate, broader probe that does not name any specific suspects but targets "possible material authors" of torture, accomplices and those who gave torture orders.
In a 10-page writ, Garzon said documents on Bush-era treatment of prisoners, recently declassified by the Obama administration, "reveal what had been just an intuition: an authorized and systematic plan of torture and mistreatment of persons denied freedom without any charge whatsoever and without the rights enjoyed by any detainee."
Garzon cited media accounts of the documents and said he would ask the U.S. to send the documents to him.
The judge wrote that abuses at Guantanamo and other U.S. prisons for terror suspects, such as the American air base at Bagram, Afghanistan, suggest "the existence of a concerted plan to carry out a multiplicity of crimes of torture."
- Garry J. Wise, Toronto
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As noted last week, effective today, British media has new-found access to the nation's Family Courts, which had previously been closed to the press.
If judges and court staff were ready for what has been hailed as a revolution in the family courts, lawyers at Barnet’s Civil and Family Court Centre were slightly taken by surprise by the arrival of the media.
Two cases had to be adjourned while lawyers discussed whether to oppose the admittance of The Times, but both, in the end, agreed — realising that stringent reporting restrictions remain in place.
After decades of holding such hearings behind closed doors, no one quite knew what to do. John Tughan, counsel for Haringey — the local authority where Baby P died — at least had on him the guidance on admitting the media just issued by Britain’s most senior judge.
But he confessed to Judge Marcia Levy: “I don’t know what our position is . . . I simply don’t know. I was asking for ten minutes to take instructions from the team manager.”
The judge, who was preparing to give an hour-long judgment in a case involving two young children, said that neither their names, nor those of other children involved, could be mentioned; nor those of the parents, nor schools, places or anyone else connected with them that would enable them to be identified.
- Garry J. Wise, Toronto
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The indispensible Cathie from Canada:
...using a term "enhanced measures" instead of "torture" is like a drug addict calling heroin "my medication". George Orwell would laugh.
- Garry J. Wise, Toronto
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CTV News reports today that Stephen Harper's Conservative government continues to hedge on whether it will abide by an April 23, 2009 Federal Court ruling, require it to formally request the repatriation of Omar Khadr, a Canadian citizen confined at Guantanamo Bay since 2002:
Foreign Affairs Minister Lawrence Cannon said Sunday the federal government is still pondering whether to appeal a Federal Court order on the Omar Khadr case.
On CTV's Question Period, Cannon reiterated the government is "looking very seriously" whether to appeal the order that it request the United States to send Khadr home from the U.S. military prison in Guantanamo Bay, Cuba.
[2] Mr. Khadr challenges the refusal of the Canadian Government to seek his repatriation to Canada. He claims that his rights under the Canadian Charter of Rights and Freedoms (sections 6, 7 and 12) have been infringed and seeks a remedy under s. 24(1) of the Charter. More particularly, Mr. Khadr asks me to quash the decision of the respondents not to seek his return to Canada and order the respondents to request the United States Government to repatriate him. Mr. Khadr also asks me to overturn the respondents’ decision on the grounds that it was unreasonable and taken in bad faith. Finally, Mr. Khadr seeks further disclosure of documents in the respondents’ possession.[3] I am satisfied, in the special circumstances of this case, that Mr. Khadr’s rights under s. 7 of the Charter have been infringed. I will grant his request for an order requiring the respondents to seek his repatriation from the United States......[56] Torture is defined under [The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment] as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” (Art. 1). The Supreme Court of Israel has concluded that sleep deprivation “for the purpose of tiring [the suspect] out or ‘breaking’ him, … is not part of the scope of a fair and reasonable investigation” and harms “the rights and dignity of the suspect” (Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 at para. 31). Based on that decision, Justice Mosley concluded that the subjection of Mr. Khadr to sleep deprivation techniques offended the CAT....[61] Canada also has a duty to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts” (Art. 39).[62] Finally, Canada has recognized “the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth” (Art. 40.1).[63] The [Convention of the Rights of the Child] imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr. Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.[64] Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time. In Mr. Khadr’s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr. Khadr’s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family.[65] Canada had a duty to take all appropriate measures to promote Mr. Khadr’s physical, psychological and social recovery....[68] Clearly, Canada was obliged to recognize that Mr. Khadr, being a child, was vulnerable to being caught up in armed conflict as a result of his personal and social circumstances in 2002 and before. It cannot resile from its recognition of the need to protect minors, like Mr. Khadr, who are drawn into hostilities before they can apply mature judgment to the choices they face....[91] I find that the Government of Canada is required by s. 7 of the Charter to request Mr. Khadr’s repatriation to Canada in order to comply with a principle of fundamental justice, namely,the duty to protect persons in Mr. Khadr’s circumstances by taking steps to ensure that their fundamental rights, recognized in widely-accepted international instruments such as the Convention on the Rights of the Child, are respected. The respondents did not offer any basis for concluding that the violation of Mr. Khadr’s rights was justified under s. 1 of the Charter.[92] The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter. To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable.
UPDATE I:
Also see Dave at Galloping Beaver, who surgically dissects the case against Khadr, and notes:
The worst part is the part you have not yet gathered in.
The government of the United States of America has told the government of Canada that they are willing to release Omar Khadr to Canadian custody on Canadian soil. All that has to happen is that the Canadian government officially request repatriation. That's the only condition.
Think I'm making that up? Then ask them. I know it's a fact. The US, as a matter of saving face in four different directions, wants to rid themselves of Omar Khadr but they need to do it under the proper optics. All that needs to be done is to have the Harper government make a public request. No back-channels.
Think I'm wrong?
Ask them. Ask them, if the Canadian government made a formal request to the government of the United States for the repatriation of Omar Khadr would he be returned to his country of birth?
Because if that happened Khadr would be on his way to Canada, in custody, but at least where the rule of law still has some meaning.
So, why won' Lawrence Cannon do that? Because the "conservative" voting base would go ape-sh*t.
Not much of a reason.
UPDATE II:
I'd highly recommend the helpful analysis of this ruling from McGill University's Human Rights and Legal Pluralism blog:
This is quite a bold decision by Mr Justice O’Reilly, in that it recognizes for the first time a duty on the part of Canada to intervene to protect its citizens abroad under certain circumstances.
...the Federal Court goes much further than these earlier court orders and finds that Canada’s decision not to seek Khadr’s repatriation in light of Charter violations is itself a breach of the principles of fundamental justice guaranteed in section 7 of the Charter....
... as a rule Canada is under no obligation to intervene abroad to protect its citizens maltreated by another state. The decision whether to do so or not is a royal prerogative, a discretionary power with which courts will normally not interfere unless a Charter right has been breached. This is why it is central to the judgment to find that the decision not to seek Khadr’s return was, in itself, a breach of constitutional guarantees.
- Garry J. Wise, Toronto
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CBC reports today on potent anti-spam legislation introduced Friday by Canada's Conservative government.
In the article, Industry Minister Tony Clement commented on the proposed Electronic Commerce Protection Act:
... Clement said the new legislation would give the government more power to prosecute spammers, and help protect consumers and businesses.
"Our proposed Electronic Commerce Protection Act will deter the most dangerous forms of spam, such as identity theft, phishing and spyware, from occurring in Canada, and will help drive spammers out of Canada," he said in a speech to the Greater Toronto Marketing Alliance, before the legislation was introduced.
The act would grant the Canadian Radio-television and Telecommunications Commission expanded powers to deal with spammers, including the ability to impose fines of $1 million against individuals and $10 million against businesses, Clement said Friday.
For full text of the proposed legislation, see Bill C-27, The Electronic Commerce Protection Act.
(h/t - Toronto Marketing Blog)
- Garry J. Wise, Toronto
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Talk Left's Big Tent Democrat:
Stuart Taylor, along with his Newsweek accomplice Evan Thomas, famously urged President Obama to do what Dick Cheney did on torture. What is it about these people? Are they so afraid that they insist on the United States following them into depravity and war crimes? Of course today they, like much of the Village, excuse a policy of war crimes - but when it came to private conduct of President Clinton, they wanted the President removed from office. There has been no contrast more demonstrative of the utter depravity and banality of the Media than this.
- Garry J. Wise, Toronto
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U.K Lawyers concerned that Open divorce courts will lead warring spouses to 'blackmail.'
- Garry J. Wise, Toronto
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From Andrew Sullivan:
To put this in plain English: We had a president determined to torture a prisoner to get false evidence on which to justify a war.
And apparently, additional photographs documenting U.S. abuse of detainees in Guantanamo and Iraq are about to be releaased by the U.S. government, in response to litigation by the American Civil Liberties Union.
- Garry J. Wise, Toronto
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