Topic: Law and Civil Liberties

Privacy vs. Justice

On Monday, the U.S. Supreme Court denied Dr. Bernard Rottschaefer’s appeal for a new trial, an appeal based on clear, post-conviction evidence that the prosecution’s star witness lied under oath.

That’s unfortunate, but expected.

A woman named Jennifer Riggle testified in the criminal trial that Dr. Rottschaefer gave her OxyContin and Xanax prescriptions in exchange for oral sex. Her testimony took a hit when, after the trial, her boyfriend was released from prison, and produced dozens of letters in which Riggle admitted to him that she had made up the oral sex stories and lied under oath in exchange for leniency with respect to her own drug charges. Despite those dozens of letters, the U.S. attorney who prosecuted Rottschaefer – Mary Beth Buchanan – refused to drop or lessen the charges against him, and to date has also refused to pursue perjury charges against her star witness.

But the case isn’t over just yet. The four other women who testified at Dr. Rottschaefer’s trial have since launched civil suits against him, and all of them have given testimony during discovery that directly contradicts their testimony at trial.

The civil trial’s discovery process revealed that one woman was getting from another doctor the same medication Dr. Rottschaefer was convicted of prescribing to her – at several times the dosage Dr. Rottschaefer was prescribing. That doctor was not prosecuted, casting some doubt on the prosecution’s claim that Rottschaefer had no “legitimate medical” rationale to prescribe the medications. Others testified that they did, in fact, have some ailments that would necessitate the prescscriptions Dr. Rotschaefer was writing.

None of this came out during the criminal trial. Taken together, the testimony of these women shows a clear case of doctor-shopping and deception, and shows that Dr. Rottschaefer – like so many of the doctors the DEA has brought down – was guilty at worst of being a poor judge of character. Hardly the kind of thing for which you put someone away for 25 years.

It’s also clear that all of these women were facing their own drug charges, charges that were reduced based on their testimony against Dr. Rottschaefer.

One particularly outrageous aspect of these cases is the way HIPAA’s privacy provisions tie the hands of defense attorneys. We’re only now finding out about these women’s histories with other doctors because defense attorneys were prevented by HIPAA from knowing of or viewing their medical records. The prosecution was free to make spurious claims to the jury – claims they knew or should have known were inaccurate – but the defense couldn’t look over the very medical records that would have rebutted many those spurious charges.

Of course, if the prosecution knew of potentially exculpatory evidence – that is, their witnesses’ dealings with other doctors – and didn’t disclose it to the defense, Ms. Buchanan’s office might soon be forced to answer some difficult questions about prosecutorial misconduct.

Medical privacy is important, of course. But if the DEA is going to continue to go after these doctors with charges that hinge on the medical histories of some of their witnesses, defendant doctors ought to be able to peruse those histories for evidence that could help prove their innocence.

Posner on Humanitarian Intervention

Below Andrew criticizes the claim that our Iraq intervention has failed because it has increased the risk of terrorist attacks.  While I, as a caveman lawyer, have little expertise on matters of foreign relations, I am an expert on what other lawyers have to say about foreign relations. 

Here, Chicago law professor Eric Posner (and son of Richard Posner) argues that the Iraq war has revealed a different trade-off:  the uncertain payoff of humanitarian military intervention.

Sending Up Security

People are highly tuned risk managers. Daily, we make decision about risky things like crossing streets. To do so, we analyze the speed and density of traffic, light conditions, our own physical skills, and myriad other factors to determine whether to cross in the middle of a block or at a controlled intersection.

Five years since 9/11, people are getting better at assessing the risks of terrorist acts. And people are growing increasingly skeptical of the risk choices being made for them by the Department of Homeland Security. The evidence? Their willingness to see security lampooned.

The writers at The Onion are undoubtedly finding a good reception for this send-up of the Transportation Security Administration’s liquids rules.

And people are diverting themselves from their exasperation with airport security using this fun game

A basic indictment of government-provided security is in daily newspapers’ comic sections this morning. Syndicated cartoon Bizarro by Dan Piraro is titled “Orientation Seminar at Homeland Security.” It depicts a teacher at a chalkboard that says “Inconvenience = Security.” (Available online here early next month). 

The funny bone is a highly tuned instrument, and it’s showing the dissonance in air security today. 

Does the Military Commission Act Apply to U.S. Citizens?

Legal scholars are debating whether the Military Commission Act [MCA], passed by Congress on September 29 and soon to be signed by President Bush, applies to U.S. citizens. The answer is more complicated than one would think.

First: Under Sec. 948a(1) an unlawful enemy combatant is “(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents …; or (ii) a person who…has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal….” Use of the word “person” suggests that citizens may be detained as unlawful combatants.

But second: Sec. 7(a) denies habeas rights only to aliens. Thus, a citizen who is detained as an unlawful combatant would appear to have habeas rights to challenge his detention.

Moreover, third: Sec. 948b states that “[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants.” In other words, only non-citizens may be tried by a military commission. 

My conclusion:  A citizen may be detained (subject to habeas challenge), but not tried, under the MCA.

Defending the Constitution

Republican Sen. Arlen Specter expects the Supreme Court to invalidate a law that he voted for:

Judiciary Committee Chairman Arlen Specter (R-Pa.) voted for the bill after telling reporters earlier that he would oppose it because it is “patently unconstitutional on its face.” He cited its denial of the habeas corpus right to military detainees. In an interview last night, Specter said he decided to back the bill because it has several good items, “and the court will clean it up” by striking the habeas corpus provisions.

Don’t be surprised if one or two Supreme Court justices respond with something like this: “This is a grave matter and judges are ill-suited to make national security decisions and so I think it proper to defer to the considered judgment of elected representatives of the people in the Congress on this habeas corpus matter.” 

As I point out in this paper, too many people seem to think that the Constitution will somehow automatically check the government when it goes too far. Not so. The Constitution cannot enforce itself. This latest episode in anti-terrorism legislation shows that we have not broken out of a vicious political cycle and that’s a very bad indication of the political and legal trends in America.

Habeas Corpus

Today’s Washington Post has this to say about the detainee bill that is working its way through the Congress:

Some of the fiercest debates focused on whether foreign terrorism suspects should have access to U.S. courts for challenging the legality of their detention, a right known as habeas corpus.

House Republicans blocked Democrats from offering amendments, including one that would have extended the habeas corpus right to detainees.

Cato Institute adjunct scholar Richard Epstein, criticized the proposals to curtail habeas corpus in this statement to the Senate Judiciary Committee a few days ago.

For additional background on the writ of habeas corpus, read this and this.

Baltimore Sun: Deep-Six REAL ID

The Baltimore Sun opinion page recognizes that the REAL ID Act’s national ID system “will neither weed out terrorists nor make a dent in the flow of illegal immigration - the two problems it was devised to address.”  In light of the exorbitant cost and impossibility to implement, its advice is to junk the REAL ID Act.