TIME justice

Jury Awards Ventura $1.8M in Defamation Case

(ST. PAUL, Minn.) — A jury awarded former Minnesota Gov. Jesse Ventura $1.8 million on Tuesday in his lawsuit against the estate of “American Sniper” author Chris Kyle.

On the sixth day of deliberations, the federal jury decided that the 2012 best-selling book defamed Ventura in its description of a bar fight in California in 2006. Kyle wrote that he decked a man whom he later identified as Ventura after the man allegedly said the Navy SEALs “deserve to lose a few.”

Ventura testified that Kyle fabricated the passage about punching him. Kyle said in testimony videotaped before his death last year that his story was accurate.

Legal experts had said Ventura had to clear a high legal bar to win, since as a public figure he had to prove “actual malice.” According to the jury instructions, Ventura had to prove with “clear and convincing evidence” that Kyle either knew or believed what he wrote was untrue, or that he harbored serious doubts about its truth.

The jury told the judge Monday that it didn’t believe it could reach a unanimous verdict, but the judge instructed them to continue. On Tuesday, attorneys for both sides agreed that the verdict did not need to be unanimous and would allow a verdict if only eight of 10 jurors agreed.

After finding in favor of Ventura, the jury was also tasked with awarding damages for any harm to his reputation, humiliation and embarrassment. Jurors had to find that Ventura suffered an economic loss as a direct result of Kyle’s statements, or that Kyle used Ventura to profit unjustly.

Neither Ventura nor Chris Kyle’s widow, Taya Kyle, were in the courtroom for the verdict. Chris Kyle was slain at a Texas gun range last year, so his widow is executor of his estate with control over proceeds from book royalties and movie rights.

In his closing argument, Ventura attorney David Bradley Olsen said he believes Kyle’s estate has earned more than $6 million from the book, and suggested that $5 million to $15 million would be reasonable compensation for what he said was irreparable harm to Ventura’s reputation.

“The verdict will tell the world Chris Kyle’s story was a lie,” Olsen said.

Olsen said Kyle’s claims that Ventura said he hated America, thought the U.S. military was killing innocent civilians in Iraq and that the SEALs “deserve to lose a few” had made him a pariah in the community that mattered most to him — the brotherhood of current and former SEALs.

“One-point-five million people have bought the book,” he said. “Millions more heard Fox TV trash Jesse Ventura because of it. And the story went viral on the Internet and will be there forever.”

Defense attorney John Borger had told jurors in his own closing argument that the 11 witnesses presented by the defense “tell a compelling and consistent story” that backed Kyle’s version.

U.S. District Judge Richard Kyle, who is not related to the author, told jurors they weren’t charged with determining whether Ventura was punched, but rather whether he was defamed by the remarks Kyle attributed to him.

Chris Kyle, regarded as the deadliest military sniper in U.S. history, included a brief account in his book of a confrontation at a bar in Coronado, California, with a man he called “Scruff Face.” In promotional interviews, Kyle identified the man as Ventura, a former SEAL who became a pro wrestler and movie actor before being elected for one term as Minnesota governor in 1998. Ventura was in Coronado for a SEAL reunion and graduation ceremony.

Olsen said inconsistencies in testimony from defense witnesses about what happened the night of Oct. 12, 2006, were so serious that their stories couldn’t be trusted. He also pointed out that people who were with Ventura that night testified that the alleged confrontation never happened. And he said Ventura would never have said any of the remarks attributed to him because he remains proud of his and his parents’ military service.

“The statement is completely out of character for Jesse Ventura. He never said anything like that in his life, and he never will,” he said.

Ventura testified that his income as a television personality fell sharply as job offers dried up in the wake of “American Sniper.” Borger said Ventura’s career as an entertainer was in decline well before that.

TIME justice

Louisiana Warden May Release Inmate From 28 Straight Years in Solitary

"When I can conclude he's not gonna cause me the blues, then he can come out of the cell"

A prisoner who has spent 28 straight years in solitary confinement may be released into the general prison population, according to the Louisiana warden who has allegedly kept him confined in a 6 by 9 foot cell for 23 hours a day.

Burl Cain, the warden of the Louisiana State Penitentiary, told reporters for Northwestern University’s Medill Justice Project that he would be ready to transfer the prisoner, Kenny “Zulu” Whitmore, in a “matter of months,” once he has determined that Whitmore no longer poses a threat to other prisoners.

“We’d rather him out, I need his cell,” Cain said in an interview with Medill Justice Project, an investigative journalism project that exposes wrongful convictions. “I’ve got some young people, predators, that need to be in that cell. When I can conclude he’s not gonna cause me the blues, then he can come out of the cell.”

A total of 35 years of solitary confinement, including 28 consecutive years, has taken a toll on Whitmore’s physical and mental health, the prisoner told reporters. His vision has deteriorated and he has developed a case of hypertension. He has filed suit against the warden and other prison officials, claiming his spell in solitary—the longest known case in U.S. history—constituted cruel and unusual punishment and violated his free speech rights.

Whitmore was sentenced to life in prison in 1977 for second-degree murder. Since then, the warden maintains that Whitmore, as a supporter of the Black Panther Party, has espoused beliefs that could provoke other inmates to commit violent attacks.

“The Black Panther Party advocates violence and racism,” Cain said. “I’m not going to let anybody walk around advocating violence and racism.”

Whitmore’s lawyer, Michelle Rutherford, said in a statement that Cain’s comments about the Black Panther Party proved the prisoner’s constitutional rights had been breached.

“Warden Cain’s statement confirms the allegations Mr. Whitmore makes in his civil rights suit: he has been held in a 9′ by 6′ cell for over 35 years because of his political beliefs, not because of any demonstrated violent or disruptive behavior.”

[Medill Justice Project]

TIME National Security

Government Spying Hurts Journalists and Lawyers, Report Says

A Human Rights Watch and American Civil Liberties Union report suggests NSA snooping prevents sources talking to journalists and compromises the relationships between defense attorneys and their clients

+ READ ARTICLE

Updated at 4:51 p.m.

National Security Agency surveillance in the U.S. has seriously hurt the ability of journalists to cover national security issues and of attorneys, particularly defense lawyers, to represent their clients, according to a new report out Monday.

Based on interviews in the United States with 46 journalists, 42 practicing attorneys, and five current or former senior government officials, the report seeks to document the tangible impact of NSA surveillance on Americans revealed by former NSA contractor Edward Snowden.

In particular, the report cites the degree to which the Obama administration’s tough crackdown on unauthorized leaks, in combination with revelations about the extent of government surveillance on Americans’ cell phones and online communications, has caused sources to vanish for national security reporters.

“Sources are worried that being connected to a journalists through some sort of electronic record will be seen as suspicious and that they will be punished as a result,” said study author Alex Sinha, a fellow at Human Rights Watch and the American Civil Liberties Union, which jointly issued the report. “As a result sources are less willing to talk to the press about anything, including unclassified matters that could be of significant public concern,” he said.

“I had a source whom I’ve known for years whom I wanted to talk to about a particular subject and this person said, ‘It’s not classified but I can’t talk about it because if they find out they’ll kill me,’ [figuratively speaking]” longtime National Security Correspondent for McClatchy Newspapers Jonathan Landay said for the report.

“It’s a terrible time to be covering government,” Tom Gjelten, a National Public Radio employee for more than 30 years, said. TIME was not listed among the news outlets from which reporters, many of whom chose to remain anonymous, were interviewed for the report.

Defense attorneys, who represent clients charged with a wide variety of offenses including terrorism, drug and financial crimes, among others, described how U.S. government surveillance has forced them to take extraordinary and often cumbersome measures to protect the privacy of sources and clients.

Such measures might include the use of complex encryption technologies, disposable “burner” cell phones, so called “air-gapped” computers, which are never connected to the internet as a precaution against hacking and surveillance, and in some cases abandoning electronic communications entirely.

“I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,” said national security defense attorney Tom Durkin for the report.

“We are fearful that our communications with witnesses abroad are monitored [and] might put people in harm’s way,” said Jason Wright, who has represented terrorism clients as a military defense attorney before the Guantánamo commissions.

A report released earlier this month by The New America Foundation argues the NSA deliberately weakens cybersecurity, making online communications, study authors argue, less secure in general. The NSA has “minimization procedures” designed to limit the exposure of “US Persons”—Americans at home or abroad and others legally inside the United States—to the NSA’s wide-net surveillance programs. Privacy advocates contend they are insufficient and that, in any case, it’s impossible to verify their effectiveness because the details remain secret.

The Office of the Director of National Intelligence told TIME that, contrary to revealing a decrease in press freedom, the Snowden leaks are evidence that journalism in the United States remains robust and unencumbered.

“The Intelligence Community, like all Americans, supports a free and robust press,” said Jeffrey Anchukaitis, spokesperson for Director of National Intelligence James Clapper. “The events of the last year demonstrate that the IC’s foreign intelligence surveillance activities clearly have not prevented vigorous reporting on intelligence activities. U.S. intelligence activities are focused on discovering and developing intelligence about valid foreign intelligence targets to help defend the nation, not on intimidating or inhibiting journalists. Likewise, the IC recognizes the importance of the attorney-client privilege, and has procedures in place to ensure that appropriate protection is given to privileged attorney-client communications.”

To address problems raised in the report, HRW and the ACLU recommend reforming U.S. surveillance practices, reducing state secrecy in general and limitations on official contact with journalists, enhanced whistleblower protections and strengthened minimization procedures.

The report comes just days before the expected unveiling in the Senate of the latest iteration of the USA Freedom Act, a bill to reform NSA surveillance practices. An earlier House version of the bill was significantly gutted of reform measures, leading privacy advocates to pull support for the bill and try instead to get more substantial reforms through the Senate.

TIME Oklahoma

Man Seeks Video of 1995 Oklahoma City Bombing

Jesse Trentadue
Salt Lake City attorney Jesse Trentadue holds a photograph of his dead brother during an interview in Salt Lake City on July 16, 2014 Rick Bowmer—AP

What some consider a far-flung conspiracy theory will be at the forefront during a trial set to begin on Monday in Salt Lake City

(OKLAHOMA CITY) — One man’s quest to explain his brother’s mysterious jail cell death 19 years ago has rekindled long-dormant questions about whether others were involved in the 1995 Oklahoma City bombing.

What some consider a far-flung conspiracy theory will be at the forefront during a trial set to begin Monday in Salt Lake City. The Freedom of Information Act lawsuit was brought by Salt Lake City attorney Jesse Trentadue against the FBI. He says the agency won’t release security camera videos that show a second person was with Timothy McVeigh when he parked a truck outside the Oklahoma City federal building and detonated a bomb, killing 168 people. The government claims McVeigh was alone.

Unsatisfied by the FBI’s previous explanations, U.S. District Judge Clark Waddoups has ordered the agency to explain why it can’t find videos from the bombing that are mentioned in evidence logs, citing the public importance of the tapes.

Trentadue believes the presence of a second suspect in the truck explains why his brother, Kenneth Trentadue, was flown to Oklahoma several months after the bombing, where he died in a federal holding cell in what was labeled a suicide. His brother bore a striking resemblance to the police sketch that officials sent out after the bombing based on witness descriptions of the enigmatic suspect “John Doe No. 2,” who was the same height, build and complexion. The suspect was never identified.

“I did not start out to solve the Oklahoma City bombing, I started out for justice for my brother’s murder,” Jesse Trentadue said. “But along the way, every path I took, every lead I got, took me to the bombing.”

The FBI says it can’t find anything to suggest the videos exist, and says it would be “unreasonably burdensome” to do a search that would take a single staff person more than 18 months to conduct.

Jesse Trentadue’s belief that the tapes exists stems from a Secret Service document written shortly after the bombing that describes security video footage of the attack that shows suspects — in plural — exiting the truck three minutes before it went off.

A Secret Service agent testified in 2004 that the log does, in fact, exist but that the government knows of no videotape. The log that the information was pulled from contained reports that were never verified, said Stacy A. Bauerschmidt, then-assistant to the special agent in charge of the agency’s intelligence division.

Several investigators and prosecutors who worked the case told The Associated Press in 2004 they had never seen video footage like that described in the Secret Service log.

The FBI has released 30 video recordings to Trentadue from downtown Oklahoma City, but those recordings don’t show the explosion or McVeigh’s arrival in a rental truck.

If he wins at trial, Trentadue hopes to be able to search for the tapes himself rather than having to accept the FBI’s answer that they don’t exist.

Kathy Sanders and Jannie Coverdale, who both lost grandchildren in the bombing, are grateful for Trentadue’s pursuit of the case. Sanders said she’s been waiting 19 years to see the tapes.

“It is worth pursuing,” Coverdale said. “I know there was somebody else. I have never stopped asking questions.”

But former Oklahoma Rep. Susan Winchester, whose sister, Dr. Margaret “Peggy” Clark, was killed in the bombing, said she is satisfied that officials have identified everyone responsible for the bombing.

“I was very comfortable with the decisions that came out of the federal and state trials,” Winchester said. “I have reached that point in my life where I can continue.”

Jesse Trentadue’s mission began four months after the bombing when his brother died at the U.S. Bureau of Prisons’ Federal Transfer Center in Oklahoma City. Kenneth Trentadue, 44, a convicted bank robber and construction worker, was brought there after being picked up for probation violations while coming back to the U.S. at the Mexican border, Jesse Trentadue said.

His death was officially labeled a suicide. But his body had 41 wounds and bruises that his brother believes were the result of a beating. In 2008, a federal judge awarded the family $1.1 million in damages for extreme emotional distress in the government’s handling of the death, but the amount was reduced to $900,000 after an appeal.

Jesse Trentadue’s best guess about the motive is that his brother died in an interrogation gone wrong by investigators demanding information Kenneth Trentadue didn’t have.

Jesse Trentadue filed the Freedom of Information Act lawsuit in 2008.

Going toe-to-toe with the federal government has come at a personal price for Jesse Trentadue, 67, who says he’s lost time with his children and wife that he can’t recover.

But he has no regrets, fueled by his love for his brother. Just three years apart, the two shared a bed, hunted coons together and played on the same sports teams growing up in a coal camp in West Virginia.

Their paths diverged as adults — Jesse becoming an attorney while Kenneth fell into drugs and crime — but the brotherly bond never broke. Before his death, Kenneth Trentadue had overcome his heroin addiction and had a newborn baby at home in San Diego, Jesse Trentadue said. The brothers spoke by phone from jail the night before his death, with the two discussing how he would soon be out.

“What I learned growing up in the coal fields is that you fight even when you know you can’t win,” he said. “Because you have to make a stand on some things. Justice for my brother is certainly one of them.”

TIME justice

Execution Gone Awry Prompts Concern Over Dubious Lethal-Injection Drugs

Arizona Execution Drugs
With the state prison in the background, about a dozen death-penalty opponents pray as they await the execution of Joseph Wood in Florence, Ariz., on July 23, 2014 Associated Press

Many states won't disclose how they obtain the chemicals used in lethal injections, bringing into question the constitutionality of recent executions

There are just over 3,000 prisoners on death row in the U.S., and 32 states where their execution remains a legal course of action. The decision to implement capital punishment in these states is generally accepted as constitutional, so long as its procedure is in line with the Eighth Amendment’s prohibition of cruel-and-unusual punishment.

The execution of Arizona inmate Joseph R. Wood III on Wednesday took nearly two hours to complete, over much of which Wood “gasped and struggled to breathe,” according to a statement released by his defense team. Of the 26 state-sponsored executions committed in the U.S. so far this year, Wood’s was the third to seemingly go awry due to the use of largely experimental lethal chemicals, prompting outrage from those who cite these incidents as evidence that capital punishment is not constitutionally viable given the apparent suffering of its recipients.

“His two-hour struggle to death goes beyond cruel and unusual. It’s torment. It’s something you’d see in third-world and uncivilized societies,” Arizona state senator Ed Ableser told TIME on Wednesday night. “It’s embarrassing to see that our state once again is in the news for everything that is wrong that happens in our government.”

The execution should have lasted no more than 15 minutes; when it became clear to witnesses that Wood’s death would be prolonged, his attorneys unsuccessfully filed an emergency appeal to end the proceedings, the final of several attempts to save his life. On Tuesday, the U.S. Supreme Court had approved the execution after a lower court ruled that Arizona, in refusing to declare how it had obtained the lethal chemicals to be used in the injection, may have violated Wood’s First Amendment rights.

In Woods’ execution, the state used a combination of the sedative midazolam and the painkiller hydromorphone — the same cocktail used by the state of Ohio in the execution of Dennis McGuire in January, in which the inmate floundered and wheezed on a gurney for nearly half an hour before the state pronounced him dead.

In a statement released after Wood’s death, Arizona Governor Jan Brewer said she was “concerned by the length of time” it took for the injection to kill him, and that she has instructed the state’s Department of Corrections to investigate the matter thoroughly.

It’s still not certain whether Woods indeed suffered pain — state officials have insisted that he was comatose throughout the process — but in any case, his prolonged death draws further attention to the efficacy of the lethal chemicals used for capital punishment in the U.S., one of the world’s last developed nations to still punish its worst criminals with death.

States have been struggling to devise new lethal chemicals to be used in capital punishment since 2011, when U.S. and European pharmaceutical companies ceased to manufacture and sell sodium thiopental, an anesthetic compound that has traditionally been essential to America’s execution cocktails. It has been a process of trial and error, of learning from mistakes. The mistakes are those execution attempts that do not transpire according to plan — typically marked by a death that comes more slowly and viscerally than anticipated.

In recent months, the hesitation of certain states to disclose information about the new chemicals has fueled a public skepticism over the exact physiological effects of these drugs on those to whom they’re administered.

“It’s time for Arizona and the other states still using lethal injection to admit that this experiment with unreliable drugs is a failure,” Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, said in a statement released after Wood’s death. “Instead of hiding lethal injection under layers of foolish secrecy, these states need to show us where the drugs are coming from. Until they can give assurances that the drugs will work as intended, they must stop future executions.”

Nearly a third of all executions involving the sedative used to kill Wood “have had extremely troubling problems,” according to a report released last month by the Death Penalty Information Center.

“Arizona appears to have joined several other states who have been responsible for an entirely preventable horror — a bungled execution,” defense attorney Dale Baich told the press. “The public should hold its officials responsible and demand to make this process more transparent.”

TIME justice

Arizona Inmate Dies After Nearly 2 Hours in Apparently Botched Execution

Joseph Wood is pictured in this booking photo.
Joseph Wood is pictured in this booking photo. Arizona Department of Corrections—Reuters

One of the judges that issued a stay of execution, later overturned, wrote in an opinion that the firing squad would likely be a better option for executions

Updated July 23, 22:30 ET

Arizona death row inmate Joseph Wood gasped and struggled for breath for at least an hour on Wednesday during what is being considered another botched execution using a lethal cocktail of drugs.

“The experiment using midazolam combined with hydromorphone to carry out an execution failed today in Arizona,” one of Wood’s attorneys, Dale Baich, said in a statement. “It took Joseph Wood two hours to die, and he gasped and struggled to breath for about an hour and forty minutes.”

According to the Arizona Attorney General’s office, Joseph R. Wood III, who was sentenced to death for killing his ex-girlfriend and her father in 1991, was pronounced dead at 3:49pm, nearly two hours after his execution commenced at 1:52p.m.

During the execution, Wood’s attorneys filed an emergency appeal in federal court claiming Wood was “gasping and snorting for more than an hour,” according to the Associated Press.

Baich witnessed the execution and says Arizona now joins the number of states that have “been responsible for an entirely preventable horror — a bungled execution.”

“We will renew our efforts to get information about the manufacturer of drugs as well as how Arizona came up with the experimental formula of drugs it used today,” Baich’s statement said.

Arizona Governor Jan Brewer issued a statement expressing concern at the time it took to execute Wood. “I directed the Department of Corrections to conduct a full review of the process,” the Governor said. However, she added: “Wood died in a lawful manner and by eyewitness and medical accounts he did not suffer. This is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims and the lifetime of suffering he has caused their family.”

A request for comment from the Arizona Department of Corrections was not immediately returned.

Wood’s execution came after what Arizona Attorney General Tom Horne described as “after several days of legal maneuvering.” On Tuesday, the Supreme Court lifted Wood’s stay of execution following the U.S. Ninth Circuit Court of Appeal’s decision to postpone his death due to the mystery around the lethal injection drugs that would be used.

One of the judges that issued the original stay, Judge Alex Kozinski, said in an opinion that the firing squad would likely be a better option for executions.

“Eight or ten large-caliber bullets fired at close range can inflict massive damage, causing instant death every time,” Kozinski said. “Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.”

TIME justice

Arizona Inmate Dies 2 Hours After Execution Began

Joseph Wood is pictured in this booking photo.
Joseph Wood is pictured in this booking photo. Arizona Department of Corrections—Reuters

FLORENCE, Ariz. (AP) — Arizona officials say a murderer who was sentenced to death has died nearly two hours after his execution started.

Joseph Rudolph Wood’s lawyers had filed an emergency appeal in federal court during the execution demanding that it be stopped. The appeal said Wood was “gasping and snorting for more than an hour.”

Attorney General Tom Horne’s office says Wood was pronounced dead at 3:49 p.m., one hour and 57 minutes after the execution started.

A message seeking comment was left with the Arizona Department of Corrections.

An Associated Press reporter witnessed the execution but could not immediately communicate with anyone outside the state prison in Florence where the execution took place.

The execution came after the U.S. Supreme Court denied several appeals seeking details about the state’s execution methods.

There have been several controversial executions recently, including that of an Ohio inmate in January who snorted and gasped during the 26 minutes it took him to die.

TIME justice

Spike Lee Splices NYPD Chokehold Footage With Scenes From Do the Right Thing

The director seems to be noting similarities between the death of Eric Garner and the killing by police of a character in his 1989 film

Film director Spike Lee posted a short video on Tuesday, which mixes together footage of a black Staten Island man who died July 17 after a confrontation with the NYPD, with an eerily similar climactic scene from his 1989 movie Do the Right Thing.

Eric Garner was a father of six who died after being held down and put in a chokehold by New York City police last week. An asthmatic, Garner can be heard in the video saying he can’t breathe while officers restrain him before he passed out.

Video of the incident, recorded by Garner’s friend Ramsey Orta with a camera phone, has gone viral online. The police officer, Daniel Pantaleo, who is seen in the video putting Garner in a chokehold, which is strictly prohibited by the department, has been assigned to desk duty, while two EMT’s who failed to act to save Garner’s life have been suspended without pay.

Lee titled the video, which he posted to Instagram and YouTube, “Radio Raheem And The Gentle Giant,” after the name of the parallel character in Do the Right Thing, who dies as a result of a brutal police chokehold, and the nickname given to Garner by friends in some media reports.

TIME

Israeli Ambassador: Here’s What “Proportionality” In War Really Means

Israeli Ambassador to the United States Ron Dermer
Israeli Ambassador to the United States Ron Dermer speaks to reporters at a breakfast organized by the Christian Science Monitor on July 22, 2014. Michael Bonfigli/The Christian Science Monitor

Israel's man in Washington makes the case that his country's military strikes in Gaza have been proportional to the threat

The Israeli Ambassador to the United States, Ron Dermer, challenged critics of his country’s military operation in Gaza Tuesday morning, saying they don’t understand the legal definition of “proportionality” in wartime.

Speaking to reporters at a breakfast organized by the Christian Science Monitor, Dermer, a former top aide to Israeli Prime Minister Benjamin Netanyahu, argued that many are unfamiliar with the “rules of war” when they charge that his country has been disproportionate in its attacks on Gaza.

“We have to understand first of all what the rules of war are, because people don’t know them,” he said. “They throw around words like disproportionate without any understanding of what that actually means. A disproportionate response, from what I can gather in the interviews that I go to and the questions that I’m asked, disproportionate is believed to be what is the body count on both sides. So therefore if there’s 600 and something Palestinians who were killed and 25 Israelis, or a few days ago when there were 200 Palestinians and one Israeli, that is deemed to be a disproportionate response. That’s how most people deal with it.”

But Dermer said those assumptions were wrong. Dermer laid out the calculus that the Israeli government makes to justifying actions that may injure or kill civilians. He continued:

It’s important to understand what proportionality is in terms of the rules of war. There’s two basic principles that you have to remember. The first is distinction, you make a distinction between combatants and noncombatants. That’s the most important principle of the rules of war, that you have to make that distinction. And here Israel always makes that distinction. You have have Hamas that is deliberately targeting our civilians hoping to kill as many as possible. And you have Israel that does not deliberately target a single Palestinian civilian. We don’t deliberately target their civilians. For us, when a civilian is killed it’s an operational failure. And the more civilians who are killed, the greater the operational failure. And obviously a tragedy even of itself. And for Hamas, they celebrate—the greater the number of civilian casualties, for them, the greater the success of their operation.

And then you have the issue of proportionality.

Let’s say there’s a legitimate target because when a schoolhouse, hospital, mosque is turned into a military command center or a weapons depot, or a place where you fire rockets, it becomes by the rules of war a legitimate target. You cannot turn a hospital into a military command center. You cannot do that according to the rules of law. It’s a war crime for Hamas to do that. You cannot turn an UNRWA school into a weapons depot, that’s a war crime. You cannot use a Mosque as a missile manufacturing facility. It becomes a legitimate target. Then the question is okay, but can you target it in this specific instance.

There you get into the question of proportionality. Meaning, just because it’s a legitimate target doesn’t necessarily give you the right to hit it. Because for that, for you to be able to do that, you have to show that the gain you will get from the military action you take is worth the potential loss of lives that you might even foresee ahead of time. So I don’t want to get into theoretical examples but if you had you know 1 rocket that was sitting in a school somewhere and there are 50 kids in a classroom, then you cannot actually target to get to that rocket and kill those kids. That would be disproportionate because the gain that you have by hitting that one rocket would not justify killing 50 kids in the school. By the same token if you had 200 rockets in place and you had one civilian, by the rules of war, you could target that place even if you knew ahead of time that the civilian would be hurt.

Now there are all sorts of judgment calls that happen in between. Can you target that same target tomorrow or in an hour or in three hours? And Israel is always making these calculations.

To date, more than 500 people have died from the fighting, according to a count by the Washington Post Tuesday morning. That includes 25 Israeli soldiers, 2 Israeli civilians, 86 armed Palestinian militants and 406 Palestinian civilians. Of those Palestinian civilians, 129 were children.

TIME justice

Study: Judicial Vacancies Are Jamming Up the System

Group pushes Senate to act to further weaken minority power to block judges

Talmadge Nix, a lawyer with the firm Nix and Poet in eastern Texas, represents a Chinese national who has been sitting in jail for months. Arrested as part of a prostitution conspiracy ring, the woman has a green card and she doesn’t want to plead guilty for fear of how it might affect her immigration status. Her co-defendants who are pleading guilty will be released from prison by the time this woman’s case goes to trial.

“There’s this hammer over her head: plead guilty and you’ll be out of jail,” says Alicia Bannon, author of a Brennan Center for Justice analysis entitled “The Impact of Judicial Vacancies on Federal Trial Courts” out on Monday. The woman’s plight is just one example of a judicial system groaning from a backlog of cases due to the high number of vacancies in federal courts.

Judicial vacancies are a particularly salient issue for eastern Texas, with judges there routinely having to travel more than 350 miles to hear cases, the study found. There are currently 49 U.S. District Court vacancies, compared with 29 such vacancies at an equivalent point in President George W. Bush’s second term.

“In trial courts around the country, vacancies are hurting our courts and individuals that rely on them to protect their rights,” Brennan says. “Delays are common. It’s harder to schedule trials. There are longer wait times to schedule motions. All this adds costs and uncertainty for litigants appearing before the courts. Cases aren’t neglected but they’re certainly being effected.”

Senate Majority Leader Harry Reid last year moved to strip the minority of the ability to filibuster some executive nominations, a move known as the “nuclear option” for the partisan toxicity it invoked in the Senate. That change has helped ease the flow of some confirmations—President Obama has overall confirmed more judges by sheer number to the federal courts than Bush by this point in their presidencies. But Bannon and the Brennan Center are pushing for even more reforms.

As it stands right now, appellate court nominations require 30 hours of debate before confirmation, and lower court judges require two hours. Usually, Democrats yield back their half of that time, but Republicans have often used their time to speak on other issues or the Senate floor stands idle as the clock runs out. Bannon says there should be a “use it or lose it” standard wherein unless senators actually use the time to address the judge under consideration, the rest of the time is yielded back. Such a move would quicken the pace of confirmations, but it also risks further angering the minority. Republicans were so furious at the nuclear option that work in the Senate in the last eight months has come to a virtual standstill, with even the most bipartisan of bills falling victim to partisan sniping.

Bannon would also like to see the so-called “blue slip process” halted or made more transparent. Though it’s not in the official Congressional rulebook, whenever a judicial nomination is pending before the Judiciary Committee, blue slips seeking comment are sent to the offices of the senators where the judge resides. If both slips are not returned, then the nomination does not proceed to a committee vote. Because Republicans have been refusing to return blue slips in a post-nuclear world, judicial vacancies are becoming clustered in Republican states. More than half of vacancies do not have nominees—all in red states where senators have stopped making recommendations to the president. Traditionally, a nomination begins with a senatorial recommendation. Of the total 60 federal vacancies, there are only 27 nominees pending.

Texas, which has two Republican senators, John Cornyn and Ted Cruz, has the most vacancies with 10 empty slots, one of which has been vacant for more than 2,000 days. Six of the 10 seats are “judicial emergencies,” meaning judges now handle more than 600 cases to make up the difference. There is a backlog of more than 12,000 cases in Texas, according to an April report by the Center for American Progress.

All the more reason, Bannon argues, that the practice of blue slipping should end, even though Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, says he opposes any weakening of that particular tradition. “At the very least, senators should be require to explain publicly why they’re holding back returning a blue slip and holding back to make recommendations for new nominations,” Bannon says. “The process should be more transparent.”

Obama, a former constitutional law professor, has made it one of his legacies to fill the federal bench. As the Senate looks increasingly like it might flip, which would all but deprive the President of future confirmations, the odds grow that Democrats push through these two procedural changes and smooth a glide path for a flurry of nominations before the party gives up control of the Upper Chamber.

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