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Weekend Circuit: Online Drug Dealer Had A Better Week Than Mike Pence

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Kevin Daley Supreme Court correspondent

This is Weekend Circuit, a weekly review of the serious and the silly in federal appeals courts in the last week.

Silk Road Founder Stages Last Ditch Appeal

Silk Road founder Ross Ulbricht brought a last ditch appeal of his life sentence to the 2nd U.S. Circuit Court of Appeals on Thursday, where a three-judge panel seemed to give the dark web tycoon a sympathetic hearing.

Ulbricht was identified by law enforcement as Dread Pirate Roberts, the elusive programmer behind the dark web’s largest illicit bazaar, Silk Road. He was convicted of money laundering, computer hacking, and conspiracy to traffic narcotics.

Though he was not convicted of procuring murder — the charge was removed from the indictment by prosecutors — testimonials from family members of several decedents killed by drugs purchased on Silk Road were included in the sentencing phase of the trial. Those testimonials, called aggravating factors, significantly informed the district court’s decision to sentence Ulbricht to a life term. None of the crimes of which he is convicted carry a life sentence.

“Does this [testimony] create an enormous emotional overload for something that’s effectively present in every heroin case?” Judge Gerald Lynch asked. “Why does this guy get a life sentence?”

That testimony “put an extraordinary thumb on the scale that shouldn’t be there,” he said.

7th Circuit Panel Trashes Mike Pence

The 7th U.S. Circuit Court of Appeals let fly a string of ruthless rhetorical barbs in a ruling Monday, which essentially characterized Republican vice presidential nominee and Indiana Gov. Mike Pence as racist.

At issue was an executive order Pence issued banning state agencies from disbursing federal funds to organizations resettling Syrian refugees. The order was challenged by Exodus Refugee International, which argued it was a violation of the Immigration and Nationality Act, since the order targets individuals of a specific nationality.

Writing for a unanimous panel, Judge Richard Posner said:

He argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting of Syrian refugees is discriminating on the basis of nationality.

The other two judges on the panel are both Republican appointees and are deeply conservative jurists.

9th Circuit: Grads Of U.S. Academy With Shoddy Human Rights Record Beyond FOIA

The 9th U.S. Circuit Court of Appeals ruled that data about personnel working for a military subsidiary with a shoddy human rights record is beyond the reach of the Freedom of Information Act.

The United States Army School of the Americas was established after World War II “for the purpose of providing military education and training to military personnel of Central and South American countries and Caribbean countries.” Some of its graduates went on to notoriety for human rights abuses. For example, 19 of its graduates were implicated in the murder of six Jesuit priests during the Salvadoran civil war in the late 1980s. (RELATED: Belgian Police Missed 13 Chances To Break Up ISIS Cell Behind Paris Attack)

The incident precipitated a series of reforms from Congress and watchdog groups. One group, School of the Americas Watch (SOAW), used the Freedom of Information Act (FOIA) to obtain the names of instructors at the school and its graduates. The group built a database to track the activities of each individual.

The school was reestablished as the Western Hemisphere Institute for Security Cooperation in 2001 by Congress. Congress also established an independent board of visitors to periodically evaluate the school’s compliance with humanitarian standards. SOAW continued to police the group, and regularly sought information relating to the Institute’s curriculum, instructors, and students. Those efforts were hampered after the Sept. 11 terrorist attacks, as a U.S. Department of Defense memorandum advised all DOD components to withhold information about personnel in connection with FOIA requests. The Army’s general counsel determined the Institute was bound by this memo in 2005. Nonetheless, SOAW continued to seek the data, eventually bringing a lawsuit against DOD in 2011.

Though the district court sided with SOAW, a three-judge panel of the 9th Circuit ruled 2-1 that the individuals in question had a strong privacy interest which was not overcome by war crimes which a agency predecessor committed almost 30 years ago.

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