Just A Summary | The Fifth Amendment: A Comprehensive Approach
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AP
The NFL Players Association intended to scrutinize immediately the new personal conduct policy for terms that permit potential legal challenges, either through arbitration or a claim with the National Labor Relations Board.
Per a source with knowledge of the situation, the NFLPA has identified multiple specific areas of concern and communicated those concerns to the Executive Committee and board of player representatives. The three biggest issues are summarized below.
First, the union disputes the leagues belief that Fifth Amendment rights have no relevance to the new policy. We disagree and will vigorously protect ALL players 5th Amendment rights; we will ensure that an NFLPA attorney and criminal attorney protect a player at every step of any NFL investigation, NFLPA management informed the Executive Committee and player representatives in a memo, a copy of which PFT has obtained. This is crucial for players protection because any information gathered in an employers investigation is not privileged, and law enforcement could obtain and make prosecutorial decisions based on such information. The NFLPA also will aggressively address the possibility that a player who invokes his Fifth Amendment right will be disciplined for failing to cooperate with the leagues investigation.
Second, the NFLPA disagrees with the plan to put players on paid leave when charged with a crime of violence. [W]e strongly object to such unilateral action by the Commissioner/Owners, in no small part because many players have contracts that include significant roster bonuses, etc., the NFLPA said. Moreover, the removal of a player from the field is a form of discipline regardless of whether he is paid his paragraph 5 salary. We do not believe that unilaterally placing players on the Commissioner Exempt list with pay before issuance of discipline in form of fine or suspension is permitted by the CBA or NFL Constitution.
Third, the NFLPA contends that the new approach to discipline under the Personal Conduct Policy, with the Commissioner delegating the initial decision to a to-be-hired Special Counsel for Investigations and Conduct, violates the plain language of the Collective Bargaining Agreement.
This new disciplinary structure violates the CBA, the NFLPA explained to the players. Article 46 of the CBA, which was obviously collectively bargained, contains the specific agreement that the Commissioner issues the initial discipline, and the parties agreed that he can delegate appeal decision rights; the CBA language allowing for delegation is specific and its absence for the Commissioner to delegate to another NFL paid position is clear.
The NFLPA may challenge these and other provisions by pursuing a system arbitration under the labor deal or filing a complaint with the National Labor Relations Board.
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Union has multiple legal concerns regarding new conduct policy
The jibe about how DAs can get a grand jury to indict a ham sandwich was uttered by a former chief judge of New York state, Sol Wachtler. Now the progressives want to make ham sandwiches out of the cops in addition to the rest of us.
The rush is on in Albany for a law that would require appointment of a special prosecutor whenever a police officer kills an unarmed civilian. You could have Zeus for your local DA; a special prosecutor would still be required.
This brainstorm is being hawked by the leftist politicians after a grand jurys failure to indict Officer Daniel Pantaleo in the death of Eric Garner. A similar law was also proposed in Missouri, after the fatal police shooting in Ferguson.
In Albany the measure is being readied by Assemblymen Karim Camara (D-Brooklyn) and Marcos Crespo (D-Bronx). This is a watershed moment, New York Citys public advocate, Letitia James, told the Associated Press this week.
Its clear that the system is broken, James says. The New York Times has come unglued over the issue, saying there is a crisis of confidence in prosecutors. The gist of the complaint is that grand juries so seldom indict police officers.
But what is a grand jury, anyhow?
My favorite definition is that a grand jury is a right, one designed to protect individuals from mob justice. At least in America and New York state, it is a right that inheres in all persons who are accused of a capital or otherwise infamous crime.
That language is from the Fifth Amendment, which is part of the Bill of Rights. No person, the amendment says, shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.
Similar phrasing exists in New Yorks Constitution, whose grand-jury protection is among the strongest in the country.
It doesnt say that no person shall answer for an infamous crime unless on indictment by a grand jury except for cops. It says no person period.
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Grand idea behind the grand jury
The Senate Intelligence Committee's report on the CIA detention and interrogation program has quickly stirred up a white-hot debate on the use of torture to extract information from our enemies.
And though there is great passion on both sides, this is not a new topic to be argued.
In the late 16th century, some 200 years before the formation of our republic, the French nobleman Michel de Montaigne shifted the centuries-old debate about the use of torture from the question of its effectiveness to the question of its inhumanity. That is, while earlier writers had worried above all about the reliability of testimony extracted from tortured suspects, Montaigne was horrified that a civilized society would make use of such a barbaric practice.
Montaigne's new perspective would come to exercise considerable influence over the ways in which intellectuals and political elites viewed torture down to our own time.
But it was above all a thin volume titled Of Crimes and Punishments, first published anonymously in 1764, that served as the clarion call for the abolition of torture. The secret of the author's identity was not held for long. The Milanese philosopher Cesare Beccaria had completed this revolutionary work at the age of 26.
Beccaria's text would have a cascading influence. Its translation into many languages paralleled an era that saw regime after regime dismantle the use of torture: Prussia in 1754, Denmark in 1770, Poland in 1776, France in 1789, the Netherlands in 1798 and Portugal in 1826.
Beccaria was influential in the United States as well. Thomas Jefferson read him with appreciation, as did James Madison and John Adams. When the Founders crafted the Bill of Rights, Beccaria's ideas made themselves palpable. We see this in the Eight Amendment, which prohibited the use of "cruel and unusual punishments" one of the enduring bases to the principle that neither the courts nor the federal government may use torture.
But the Fifth Amendment, with its stipulation that no person "shall be compelled in any criminal case to be a witness against himself," was perhaps an even clearer constitutional obstacle to the use of torture. If a person suspected of a crime could not testify against himself, then torture could really play no role, since one of the key aims of torturers is to extricate self-incriminating evidence from a suspect, whether of a common criminal or a terrorist.
Historians are right therefore to stress that the period running from the Renaissance (the age of Montaigne) to the Enlightenment (the age of Beccaria) witnessed the emergence of new ideas about the person. These ideas would shape many contemporary values, as reformers drew on them not only to end torture but also slavery and religious repression.
These same ideas were, not incidentally, fundamental to shaping democratic and open institutions. This doesn't mean the ideas were always successful or without contradictions, but they unquestionably enabled a new notion of the human person and the political community to emerge. It is within this cluster of new ideas that men and women came to see torture not merely as ineffective but as fundamentally wrong. Torture degrades both the victim and its perpetuator. It strips both of their dignity and their humanity. The ends cannot justify the means.
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History foreshadows against the use of torture
Refugees from Africa line up at a makeshift immigrant processing center in Bnei Brak, the only one open to them in Israel. Photo by Simone Wilson
One hour before the 19th Israeli Knesset, or parliament, dissolved forever on Dec. 8, its members made a last-ditch effort to save Holot, the open desert prison they created one year prior to detain undocumented Eritrean and Sudanese immigrants.
On the table was a fifth amendment to the half-century-old Anti-Infiltration Law created to prevent Palestinian refugees from returning to Israel, but amended in recent years to govern the fate of 50,000 Africans who trekked to Israels southern border seeking work and asylum.
The latest amendment comes in response to a Supreme Court ruling in September that found Holot to be unconstitutional. Instead of closing it completely, Knesset members proposed that individual prison terms be limited to 20 months, and that prisoner check-ins be cut from three times per day to once each night.
After the final tally on the night of Dec. 8, the bill passed 41 to 29.
Members of the 19th Knesset, known for their high-drama plenum battles, used the vote to stage a final showdown of ideals.
[We must] keep this country as the nation-state of the Jewish people and not invite a situation in which thousands of infiltrators come here to find work, said right-wing Knesset member Miri Regev, a member of the prime ministers Likud Party. Its a disgrace that parties who call themselves Zionist, like the Labor Party, opposed this bill.
Knesset member Nitzan Horowitz, a former TV reporter belonging to the leftist Meretz Party, fired back. Its too bad Regev and the interior minister didnt read the High Courts first verdict overturning the law, he said. They would have understood that in a democratic state, it is impossible to imprison people without a trial. It doesnt matter whether theyre Blacks from Africa, blonds from Sweden or people from Tel Aviv or Yeruham.
The goal of the new legislation, as stated by Israeli Prime Minister Benjamin Netanyahu when it was drafted on Nov. 30, is to continue driving undocumented Africans out of Israel.
It fits the reality, Netanyahu said of the law. It also fits the rulings of the High Court of Justice. I remind you that Israel has achieved the extraordinary, which Im very proud of, in blocking illegal migration across our borders zero illegal migrants. Part of this entails repatriating illegal migrants. This year we repatriated over 6,000 illegal migrants. This legislation is designed to enable us to continue this trend.
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19th Knessets dying wish: Drive Africans from Israel