Monday, October 17, 2011

SCOTUS Reviewing Stolen Valor Act

The Supreme Court announced Monday that it will review whether a federal law that makes it a crime to lie about receiving a military honor violates free speech rights. The Stolen Valor Act was passed by Congress in 2006. The law makes it a federal crime for people to claim falsely, either in writing or aloud, that they have been awarded the Medal of Honor, a Silver Star, Purple Heart or any other military medal. The court said Monday it will rule on the constitutionality of the law.

A sharply divided U.S. Court of Appeals for the 9th Circuit ruled this year that the Stolen Valor Act passed overwhelmingly by Congress was unconstitutional. The chief judge of the circuit, Alex Kozinski, said it would be “terrifying” to permit the government to decide which sorts of lies could be prosecuted.

The case is U.S. v. Alvarez, 11-210.  Arguments will take place early next year.

The case concerns the government's prosecution of Xavier Alvarez of Pomona, Calif. A member of the local water district board, Alvarez said at a public meeting in 2007 that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration. In fact, he had never served in the military.
He was indicted and pleaded guilty with the understanding that he would challenge the law's constitutionality in his appeal. He was sentenced under the Stolen Valor Act to more than 400 hours of community service at a veterans' hospital and fined $5,000.
A panel of the San Francisco-based 9th U.S. Circuit Court of Appeals voted 2-1 to strike down the law. The majority said there is no evidence that lies such as the one told by Alvarez harm anybody and no compelling reason to make a crime out of them.
In a dissent, Judge Jay Bybee said his colleagues should have followed previous Supreme Court rulings holding that false statements are not entitled to First Amendment protection.

You may recall Jay Bybee from George Bush's Office of Legal Counsel (OLC).
During Jay Bybee's tenure at the OLC, the CIA requested legal advice on detainee interrogation. That request was routed to the OLC by then White House General Counsel Alberto Gonzalez who desired the "ability to quickly obtain information from captured terrorists and their sponsors." The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking Al-Qaeda members captured outside the United States. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in 18 U.S.C. § 2340. That section implements, in part, the obligations of the United States under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
Bybee signed that legal memorandum which defined "enhanced interrogation techniques" in ways that are regarded as torture by the Obama Justice Department, Amnesty International, Human Rights Watch, some medical experts in the treatment of torture victims, some intelligence officials, and American allies. This memo has been the source of controversy and calls for his impeachment. Bybee is currently the subject of a war crimes investigation in Spain.
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