Monthly Archives: January 2005

David Neiwert Turns Over Rocks

David Neiwert, aka Orcinus has been turning over rocks and finding ugly things crawl out. The latest example in a depressingly long series of posts is hinterlands of Idaho and Montana, where it seems “eliminationist” rhetoric is getting a strong foothold.

I've been talking for some time about the course that eliminationist rhetoric on the right would eventually take by the force of its own nature: pretty soon we'd go from talking about liberals as traitors to overtly wishing for violence to be visited upon them and discussing locking them up, followed in due course by such violence and incarceration becoming a reality.

Well, it is now becoming a commonly spoken sentiment on the right to wish for violence against liberals and to simultaneously suggest they and all “traitors” (including Muslim Americans) should be locked away. We're firmly into Phase II now.

I would like to assure you — and myself — that Mr. Neiwert is some sort of alarmist crank, and that the attitudes he describes cannot spread.

But I can't do that.

Posted in Politics: US | Comments Off on David Neiwert Turns Over Rocks

The Inauguration

Lots of people I know are forwarding me emails about various forms of protest centering on the high cost of the planned Bush inauguration.

I think these complaints, while very well-meaning, and fairly well-taken, are not going to have much traction.

There's no doubt that the inauguration preparations are over the top. The idea of closing off a huge part of downtown DC, not to mention the idea of trying first to stick one of the poorest cities in the US with the bill, then deciding to raid the Homeland Security piggyback to pay so-called security costs (which include building bleachers), is ugly.

But the fact is that the country likes a party. Carter didn't win many points for turning down the heat and wearing a sweater. Reagan won points for reigning regally. Bush isn't regal, but unless it's true that 9/11 changed more than the way in which we justify pointless wars and blank checks to federal contractors, I expect relatively few people will get on board this bandwagon…and those cheering the party will see it largely as sour grapes.

So, sorry friends, good luck, and thanks for thinking of me, but I'm going to keep worrying about casualties in Iraq (soldiers, civilians, our money, their infrastructure, our claims to decency, and counting), the fight over social security, and the environment — which has me increasingly worried about both pollution and systemic, tragedy of the commons, issues such as overfishing and global warming. Oh, and nuclear proliferation. And gerrymandering. And election mismanagement and irregularities. And protecting anonymity and free speech. And, sigh, about twenty other things.

Posted in Politics: US | 2 Comments

Bush Team Fights To Protect CIA Right to Torture

Waterboarding is torture. And the Administration wants to ensure that the CIA can keep doing it and its ilk.

White House Fought New Curbs on Interrogations, Officials Say: At the urging of the White House, Congressional leaders scrapped a legislative measure last month that would have imposed new restrictions on the use of extreme interrogation measures by American intelligence officers, Congressional officials say.

The defeat of the proposal affects one of the most obscure arenas of the war on terrorism, involving the Central Intelligence Agency's secret detention and interrogation of top terror leaders like Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, and about three dozen other senior members of Al Qaeda and its offshoots.

The Senate had approved the new restrictions, by a 96-to-2 vote, as part of the intelligence reform legislation. They would have explicitly extended to intelligence officers a prohibition against torture or inhumane treatment, and would have required the C.I.A. as well as the Pentagon to report to Congress about the methods they were using.

But in intense closed-door negotiations, Congressional officials said, four senior members from the House and Senate deleted the restrictions from the final bill after the White House expressed opposition.

I suppose this answers the question 'Why isn't Congress doing something about the torture issue?' — the answer is 'Because Bush & Co are working hard to prevent it.'

Is there no one who will filibuster Gonzales — as a fundamental moral issue — by reading all the Pentagon (and FBI) reports on torture into the record? And the photos. And the secret photos and movies, which could be placed on the public record under Congressional privilege . (The latter may be asking too much; although Senators are Constitutionally protected from prosecution from declassifying material when they speak on the floor of the Senate, the consequence would be to lose the clearance that allows them future access to such materials. It might still be worth it.)

Update: Marty Lederman's reaction to this NYT article makes a number of important points including:

  • The story confirms the hypothesis that he and I have both been pushing, that one of the engines driving the torture memos was a need to either legitimate, or at least fail to repudiate, ongoing CIA practices
  • Once you allow waterboarding by the CIA against foreign persons held secretly abroad, it's not going to be limited to 'top terrorist leaders' but rather, “It's somewhat unrealistic to hope that the policy will not as a practical matter have ramifications far beyond the class of persons for whom the policy was designed.”
  • This Administration has talked a great deal about how it is committed to treating detainees “humanely,” but all the while it has fought tooth and nail to be able to treat detainees inhumanely, i.e., in a manner that would be unconstitutional if done in the U.S.
  • We'd all be better off if these issues were debated openly rather than having these fundamental moral choices — with, one may add, significant anti-US propaganda implications — made in the dark.
Posted in National Security | 6 Comments

Stay Tuned For Hell To Freeze Over

Words I never thought I would write dept: Andrew Sullivan's Sunday NYT book review article on American torture is … brace yourself … remarkably sensible:

The critical enabling decision was the president's insistence that prisoners in the war on terror be deemed ''unlawful combatants'' rather than prisoners of war. …

The president's underlings got the mixed message. …

What's notable about the incidents of torture and abuse is first, their common features, and second, their geographical reach. No one has any reason to believe any longer that these incidents were restricted to one prison near Baghdad. They were everywhere: from Guantánamo Bay to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for all we know, in any number of hidden jails affecting ''ghost detainees'' kept from the purview of the Red Cross. They were committed by the Marines, the Army, the Military Police, Navy Seals, reservists, Special Forces and on and on. …

Whether we decide to call this kind of treatment ''abuse'' or some other euphemism, there is no doubt what it was in the minds of the American soldiers who perpetrated it. They believed in torture. And many believed it was sanctioned from above. …

Who was responsible? There are various levels of accountability. But it seems unmistakable from these documents that decisions made by the president himself and the secretary of defense contributed to confusion, vagueness and disarray, which, in turn, led directly to abuse and torture. The president bears sole responsibility for ignoring Colin Powell's noble warnings. …

Worse, the president has never acknowledged the scope or the real gravity of what has taken place. His first instinct was to minimize the issue; later, his main references to it were a couple of sentences claiming that the abuses were the work of a handful of miscreants, rather than a consequence of his own decisions. …

And the damage done was intensified by President Bush's refusal to discipline those who helped make this happen. A president who truly recognized the moral and strategic calamity of this failure would have fired everyone responsible. But the vice president's response to criticism of the defense secretary in the wake of Abu Ghraib was to say, ''Get off his back.'' In fact, those with real responsibility for the disaster were rewarded. Rumsfeld was kept on for the second term, while the man who warned against ignoring the Geneva Conventions, Colin Powell, was seemingly nudged out. … Alberto R. Gonzales, who wrote memos that validated the decision to grant Geneva status to inmates solely at the president's discretion, is now nominated to the highest law enforcement job in the country: attorney general. The man who paved the way for the torture of prisoners is to be entrusted with safeguarding the civil rights of Americans. It is astonishing he has been nominated, and even more astonishing that he will almost certainly be confirmed.

But in a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ''evil'' might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes.

I'm not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it's worth a thorough reassessment of rhetoric and war methods. Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ''heroic'' protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.

OK, one might have preferred to see this before the election, but better late than later.

Posted in Iraq Atrocities | Comments Off on Stay Tuned For Hell To Freeze Over

A Real Good Start

There's an old, old joke that goes,

Q: what do you call it when a ship with 800 lawyers aboard sinks?

A: A good start.

Here's why people tell jokes like that:

CNN.com – Pair arrested for telling lawyer jokes – Jan 12, 2005

Did you hear the one about the two guys arrested for telling lawyer jokes?

It happened this week to the founders of a group called Americans for Legal Reform, who were waiting in line to get into a Long Island courthouse.

“How do you tell when a lawyer is lying?” Harvey Kash reportedly asked Carl Lanzisera.

“His lips are moving,” they said in unison.

While some waiting to get into the courthouse giggled, a lawyer farther up the line Monday was not laughing.

He told them to pipe down, and when they did not, the lawyer reported the pair to court personnel, who charged them with disorderly conduct, a misdemeanor.

“They just can't take it,” Kash said of lawyers in general. “This violates our First Amendment rights.”

Reading between the lines of the rest of the story, it sounds as if they might indeed have been somewhat overloud and disorderly for a courthouse. But even so…

Posted in Law: Free Speech | 1 Comment

A Classroom Etiquette Question I’m Asking My Students in Administrative Law

Here is a classroom etiquette question…or is it an administrative law question in disguise?

1. Is it appropriate for students to chew gum in class?

2. Suppose an instructor believes that chewing gum in class is not appropriate. Assuming the relevant Student Handbook is silent on the issue of food (and gum) in class, and that there are no relevant precedents in formal disciplinary proceedings, what notice if any is required to make it fair to discipline students for this? Is there anything else you would need to know before answering this question?

3. Is your answer the same or different for gum chewers who blow bubbles in class? Why?

4. “In class” could mean a lot of things: high school, college, law school, bar review, traffic school. Would your answer to #1 & #2 be different in any of these circumstances? Why?

Posted in Law School | 8 Comments