Austin, Independent Contractors and Section 1706

From Slate: Alleged Austin attacker Joe Stack's suicide note railed broadly against the government and the IRS, but it also had a very specific piece of legislation in mind, the New York Times reports: Section 1706 of the 1986 Tax Reform Act, which Stack blamed for leaving him bankrupt. According to the Times, the law makes it nearly impossible for software engineers to earn a living as independent contractors and forces most freelancers into joining companies or going broke. The law was initially introduced as a favor to IBM (they wanted a tax break), and a number of lawmakers have made unsuccessful attempts to repeal it over the years. According to a Washington, D.C., lawyer, up to 100,000 engineers are currently affected by the legislation. "This law has ruined many people's lives, hurt the technology industry, and discouraged the creation of small, independent businesses critical to a thriving domestic economy," Harvey J. Shulman told the Times. While some critics—like Shulman—say that repealing the law would be good for the economy, others worry that it would "open a Pandora's box of other independent contractor issues." 

"Do the Right Thing"

The Obama administration hopes to announce a new venue for the trial of Khalid Sheikh Mohammed within three weeks, Attorney General Eric Holder tells the New York Times in today's edition.  Officials are now re-examining the options for civilian trials in New York, Virginia and Pennsylvania, the three 9/11 attack sites, as well as a military commission back at Guantanamo, according to the Times.

Foretelling the political fallout that was about to rain down on Holder's decision to try KSM in a Manhattan federal court, White House chief of staff Rahm Emanuel tells the Times that he disagreed with Holder's decision and favored a military trial because of the political implications and the role that Sen. Lindsey Graham (R-SC) would play.  "You can't close Guantanamo without Senator Graham, and K.S.M. was a link in that deal," Emanual is quoted, saying he urged Holder to talk with Graham.   Graham more recently introduced legislation that would withhold federal funding for federal civilian trials of terrorists.  

But the White House ultimately deferred to Holder's rule-of-law legal analysis to try K.S.M in a federal criminal court.  The Times quotes WH advisor Valerie Jarrett:  "The attorney general briefed the White House team on his analysis and the decision was made to defer to him, because ultimately it was his decision."  (Interestingly, the Times piece chips away at Holder's assertion, made at his November 13 news conference, that he had not engaged in discussions with the White House over the K.S.M. venue decision.)


The Times describes those White House discussions, telling how Holder, walked through how the case would play inside the courtroom compared to a military tribunal: "He told colleagues that the civilian option was more likely to deliver swift, sure justice.  Unlike the civilian prosecutors, the military team built its case around detainee confessions that are likely to raise challenges over whether they were tainted by torture. The commission system’s prosecutors and judges were less experienced; its rules are a work in progress, with no clear answer to questions like whether defendants may plead guilty to capital offenses; and its legality is untested, so the Supreme Court might overturn any guilty verdict."


Respect by White House officials for Holder and his principled "do the right thing" persona played a big role, according to the Times.  But the White House put the clamp on Holder's ability to explain those merits to the American public following his November 13 announcement, creating a political vacuum that continues to give political critics -- including former Vice-President Dick Cheney -- the opportunity to denounce the civilian trial plan as  soft-on-terror.

"Material Support" to Terrorist Groups

The Supreme Court on February 23 will hear two separate cases challenging the constitutionality of the Patriot Act's ban on “material support” to terrorist groups as designated by the government. The cases are Holder v. Humanitarian Law Project, et al., 08-1498, and Humanitarian Law Project, et al., v. Holder, 09-89).

While the cases raise separate legal questions, the two sides agreed — with the Court’s permission — to have each side address all of the dispute in each’s brief on the merits.

Adam Liptak provides background on the case in today's New York Times.

Yoo Too

As reports continue to circulate that the Justice Department has softened its criticism of attorney John Yoo for memos approving the Bush administration's treatment of terrorism suspects, several prominent lawyers are urging a federal appeals court in San Francisco to hold Yoo accountable, the San Francisco Chronicle reports.