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Friday, June 21, 2002
Update Part II: Rand still takes issue. All I can say is, read the opinion. Judge Wright takes 37 pages to recap the case, and dismisses each of Jones' claims on their merits and as matters of law.

As far as the Jan 29, 98 ruling is concerned, Judge Wright says:
The court acknowledges that evidence concerning Monica Lewinsky might be relevant to the issues in this case. The court would await resolution of the criminal investigation currently under way if the Lewinsky evidence were essential to the plaintiff's case. The court determines, however, that it is not essential to the core issues in this case. In fact, some of this evidence might even be inadmissible as extrinsic evidence under Rule 608(b) of the Federal Rules of Evidence.
Rule 608(b) says
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609 , may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
In other words, Judge Wright is saying that the Lewinsky evidence "might be relevant", and that some of it might even be "inadmissable" -- hardly a citation upon which to rely in arguing that the evidence is relevant.

What that evidence attempted to prove was a "pattern and practice", but Jones' doesn't win her case simply on that showing -- she needed to show that there was harm done to herself. On that point, Judge Wright rules:
Whatever relevance such evidence may have to prove other elements of plaintiff's case, it does not have anything to do with the issues presented by the President's and Ferguson's motions for summary judgement, i.e. whether the plaintiff herself was the victim of quid pro quo or hostile work environment harassment, whether the President and Ferguson conspired to deprive her of her civil rights, or whether she suffered emotional distress so severe in nature that no reasonable person could be expected to endure it. Whether other women may have been subjected to workplace harassment, and whether such evidence has allegedly been suppresed, does not change the fact that plaintiff has failed to demonstrate that she has a case worthy of submitting to a jury...[the opinion at pg 38]
Note that the "issues presented by the President's and Ferguson's motions for summary judgement" are a response to each of Jones' outstanding claims -- claims which the judge ruled supra to be without merit and not supported by caselaw. On proving the claims -- which is what the case was all about -- Judge Wright says that the Lewinsky evidence is irrelevant -- in other words, the testimony was immaterial to proving Jones' claim.

Again, read the ruling -- the judge dispensed Jones' claims solely on the merits of those claims.

On the question of "precedence" on the Starr investigation, it's clear that Judge Wright's compulsion is based on the "Rules", rather than her own opinion of the merits of Judge Starr's inquiry. To suggest that the ruling granting "precedence" is agreement -- tacit or otherwise -- with Judge Starr is a suggestion not supported by a reading of the document.

As far as the contempt citation is concerned, it was for willfully violating discovery orders -- how he did it was by "giving false, misleading and evasive answers", but that testimony was still immaterial, ergo "contempt" but not "perjury". If the President had lied to the grand jury convened by Judge Starr, then it would have been "perjury"...

Addendum: Since we're asking "if/then" questions, let me pose one: If the Tripp tapes "prove" that Clinton committed a "slew of felonies", as Coulter et al suggest, then why has Clinton not been indicted? If your going to ask questions, then you ought be ready to ask some that challenge your own arguments(that's what I always do before I engage in argument -- it's a very good habit).

Thursday, June 20, 2002
Update:Rand Simberg takes me to task for my below assertion that Judge Susan Weber Wright found the Clinton testimony "immaterial", and cites a January 1998 ruling. I'll need to find the exact language, but if you go to the ruling in which the case was dismissed (April '98?), the judge makes clear that none of that testimony was relevant to the case before her because Jones had failed to meet the legal standard on "harrassment". In other words, and parphrasing the ruling, whether or not Jones was able to prove a pattern of harrassment on Clinton's part -- which is what the whole line of inquiry into the relationship between Lewinsky and Clinton was an attempt to prove -- mattered not.

Wednesday, June 19, 2002

Coulter Can't Cogitate!

Tony Adragna
Bill Herbert, who doesn't like Coulter, pointed to her latest rant and asked me what I thought (he's "really tired of covering the same ground"). Well, I try not to think about Coulter -- I don't even read what she writes unless somebody asks me to -- so I initially demurred. However, after some consideration, I feel obliged to comment.

Ann Coulter hasn't merely gone overboard -- she bumped her head on the gunwale as she fell, and is now lost in a vast ocean with no frame of reference by which to judge just how lost she's become.

Coulter castigates "liberals" for our treatment of that "whistle-blower" Tripp, and somehow contorts Rowley's reasoned "probable cause" justification -- based initialy on suspect behavior, and later supported by intel from a credible source -- into "being a Muslim constitutes 'probable cause' for a search warrant."

I don't know why everybody is so ready to discount Rowley's "probable cause" argument, but I do know why Coulter doesn't even get it right when she deconstructs the argument -- a correct recap of Rowley's argument simply wouldn't gel with Coulter's world view. Where does Coulter get it wrong?:
First of all, refusing consent to a search is not considered suspicious, since it is your right to refuse. Any other rule would allow cops to bootstrap their way into a warrant. "Hi, Zacarias, may we search your computer? No? That's suspicious! Grounds for a warrant!" I don't think so.

So, let's see, which of the remaining factors might constitute probable cause? In flight school? NO. Overstayed visa? NO. Is a Muslim? NOT ALLOWED.

As Rowley admits, "reasonable minds may differ as to whether probable cause existed" on the basis of Moussaoui being a Muslim. But there is more! She insists that once "French Intelligence Service confirmed his affiliations with radical fundamentalist Islamic groups," probable cause was "certainly established."

Not under the law it wasn't. Being in league with known terrorists may be suspicious, but it is not probable cause to believe that a particular crime is being or has been committed by a specific individual. Were the law otherwise, one could get a warrant to search anyone who associates with the Clintons.
Put that way, Coulter's argument seems to be spot on. Problem is, she leaves out an important fact, discounts the whole context, and is wrong in a matter of law.

Fact: Flight training paid for by cash in the amount of $6300. Not per se an act which would amount to "probable cause", but "suspicious transactions" are often the first bit of a clue into some illegal activity. As part of our anti-money laundering scheme, "suspicious transactions" and "Large Currency Transactions" -- Moussaoui also opened a bank account with $32,000 in cash, so there should be a "Currency Transaction Report" with his name on it floating around the Treasury -- are regularly reported to enforcement authorities, and quite a few illegal enterprises have been successfuly prosecuted on the basis of evidence collected in investigations that began with a close look at "transactions".

The Context: Put the "suspicious transaction" into the context of any other behaviors that the flight instructors might have picked up on, "the way [Moussaoui} refused to allow them to search his computer" -- that is, there wasn't simply a refusal, but something about his demeanor that the agents picked up on (they are, after all, not simply listening to the answers during questioning, but also paying attention to the suspects behavior) -- and the knowledge of "unspecific threats" that everybody has admitted to being aware of. When the French "confirmed his affiliations with radical fundamentalist Islamic groups and activities connected to Osama Bin Laden" -- that is, Rowley doesn't merely rely on the clause before the and, as Coulter wants to imply, but also on a connection to a "known terrorist" -- Rowley correctly considered that confirmation as "certainly" establishing "probable cause."

The Law: To have obtained a Title III order Rowley would definitely have had to show that there was a "fair probability" that some crime had been or was about to be committed. But, under both the Antiterrorism and Effective Death Penalty Act of 1996 and FISA there need be no evidence of a specific "crime" before the executive may take action. In the former case there only needs be a showing that the person is a terrorist, whether or not there is sufficient evidence to prosecute for a specific act, and the government may expell the alien. In the latter case there needs only be a showing that the person is probably (Update: Actually, I'm still doing reasearch - some experts have cited "reasonable suspicion", rather than "fair probability", as the "probable cause" standard in "national security" cases) an "agent", whether or not the agency involves any specific crimes, and the government may act.

In addressing only the search for a warrant under Title III, Coulter makes a valid argument upon which "reasonable minds may differ", but put all of what Rowley noted into its proper context, and you can only come away differing with Rowley by making a purposeful act of delusion in refusing to recognize that the suspicions of the agents in Minneapolis have been vindicated.

The argument served Coulter's purpose -- an obvious attempt at pulling support for her vitriol out of Rowley's perfectly rationale argument. The attempted dysphemism ought fall flat on its face, but it won't.

As for the analogy between Linda Tripp and Coleen Rowley -- Gimme a break! Far from "proving the president of the United States had committed a slew of felonies", the tapes -- which are nothing more than what dumpees have been doing for millennia: getting together with a girlfriend to commiserate over being dumped by a PIG (Stipulated: Clinton is a PIG) -- the tapes only confirm that Clinton lied in testimony that the trial judge in the Jones case later found to be immaterial. No "materiality" = no "perjury" = No felony.

Even though the tapes hint that Clinton et al may have attempted to pressure Lewinsky to perjure herself, there is no proof, and Lewisnky denied it in her grand jury testimony.

I don't know for sure what Tripp's motivation was in making the tapes --for which she was nearly prosecuted -- or revealing them. I'm quite sure, though, that Tripp was mostly concerned about herself, while Rowley's act was selfless -- no equivalence.

Monday, June 17, 2002

What The Bishops Did,
And What They Said

Tony Adranga
Unlike some Catholic thinkers (and, probably, a majority of Catholic bloggers), I think that the Charter for the Protection of Children and Young People was a good result. However, I found the process particularly distasteful.

My discomfort with the debate that took place in Dallas began as soon as I heard the Bishops discussing not the merits of doing the right thing. Rather, much of the discussion of specific proposals seemed to focus on how the proposals would be received by the public.

The problem with using "public reception" as the gauge of success is twofold: it appears as if the Bishops are attempting to restore confidence through a public relations campaign; and it unecessarily limits the Bishops' efforts to the problem as perceived by the public.

Just look at the title of the charter -- it only addresses "the Protection of Children and Young People". That's a good thing of itself, but falls short of addressing the totality of the problem of sexually abusive priests.

For instance, some Catholics still insist that the sexual abuse problem is inextricable from the "problem" of homosexuality in the priesthood. For these people the charter falls far short of addressing what is perceived to be the greatest risk factor. The perception depends on an assertion that the majority of victims are boys. The problem with formulating a response that addesses this perception, and thus is well recieved by the public, is that the perception may be completely wrong.

At least two experts in dealing with clergy sexual abuse -- Gary Schoener and A.W. Richard Sipe -- claim that the majority of victims are adult women (Anne A. Simpkinson quotes Sipe, "sexual abuse of minors is only part of the problem [in the Catholic Church]. Four times as many priests involve themselves sexually with adult women, and twice the number of priests involve themselves with adult men.").

Of course, there's no moral equivalence between sexual abuse of minor boys and sexual abuse of adult women. But, there is certainly a moral equivalence between the sexaul abuse of minor boys and the sexual abuse of minor girls. So, why don't we hear about the young female victims of priests?

At least the gender neutral language of the charter implicitly recognizes that the problem is not limited to sexual abuse of minor boys. But, child sexual abuse is just the penumbral problem -- there's an even bigger issue lurking in the shadows. Before we're done dealing with the Catholic church's sex abuse problems there's going to be a need to address the much larger problem of abusive relationships between priests and adult parishoners -- the lesser evil is still evil.

But, what about homosexuality in the priesthood? Is this a problem that the Bishops need to address?

Fr. McBrien (still my favourite theologian) notes that there is a problem with the percentage of gays in seminaries, and that there may be a question as to whether they are pursuing Holy Orders for the correct reasons. I agree with Fr. McBrien -- the percentage of gays in seminaries is too high, and there is reason to question whether a gay man's vocation is true. However, the obeservation begs a question: are there more gays pursuing vocations now than when Fr. McBrien was in seminary, or are there simply fewer heterosexuals pursuing vocations?(The only thing I can say for sure is that there are fewer candidates for the priesthood in general, and fewer closeted homosexuals, now than there were 30 years ago.)

I also believe that while it's appropriate to question whether a gay man's vocation is true v. an attempt to seek refuge behind the collar from one's own problems, that question is also appropriate to the motivations of heterosexual candidates.

And why exactly have vocations to the priesthood fallen off among heterosexuals? Some argue that it's because of the "homosexual culture" in seminaries. Others assert that the decline is due to the Catholic church's post-Vatican II slide from "tradition". I think that the reason has more to do with cultural changes in U.S. society at large over the last 30 years -- Catholic "orthodoxy" isn't different in the U.S., than in other places where Roman Catholics are found yet vocations are flourishing.

It would be a mistake, though, for both proponents and opponents of the addressing the "homosexual question" to be either upset or pleased by the Bishops' refusal to address the question in Dallas. The reference in the document to "the Apostolic Visitation of our diocesan/eparchial seminaries and religious houses of formation" leaves open the discussion on whether there is going to be an attempt to "scapegoat" gays -- I think that a response which seeks to satisfy those calling for a "zero homosexual" policy would be a great mistake.

Before the church decides on who presents the greatest risk (beside those clerics who have already proven to be offenders), the church ought wait til the work of the study called for at Article 9 is complete. The description, "including such data as statistics on perpetrators and victims", might surprise all of us.