IsThatLegal?

I'm a professional cynic,
but my heart's not in it.
-- Blur, "Country House"

Just remember: It's the Democrats who use a politician's death and funeral for political advantage. Right? (That's the link to the official Bush/Cheney website.)

Thanks to buddy Brad for pointing this out to me.

Curmudgeonly Clerk takes Michael Froomkin and Kevin Drum to task for implying that there's something uniquely and unprecedentedly evil going on in the Bush Administration. Straying, I must say, onto my home field, Clerk notes that the Roosevelt Administration (among other things) placed more than 100 thousand Japanese Americans into camps during World War II. Clerk doesn't defend this episode, but says it shows that "the Bush administration's alleged wartime moral failings are [neither] unprecedented [nor] unique."

For a moment, though, let's confine our focus to the Justice Department. In that Department we are seeing unique and unprecedented moral failings. No episode reveals this more clearly than FDR's treatment of Japanese Americans.

Under the leadership of Francis Biddle, FDR's Attorney General, the Justice Department opposed the eviction and incarceration of American citizens of Japanese ancestry. Biddle's top assistants went toe-to-toe with the War Department's top brass, and ultimately the War Department won the fight. But the Justice Department fought the plan, stated in no uncertain terms that they thought the plan illegal and unnecessary, and wanted no part in the evacuation or in the enforcement of exclusion orders that they viewed as unconstitutional. Take a look at the words of Attorney General Biddle here (you have to scroll down a little bit to the entry for Biddle).

The leadership of this Justice Department, by contrast, appears to have been only too eager to provide Defense and the President with a rationale for whatever they wanted to do.

For many of us who are lawyers, these are unique and unprecedented failings in a department that is supposed to protect the rule of law.

My favorite (and I use that word loosely) sentence from the DoD memorandum:

"Moreover, we think that pushing someone to the brink of suicide (which could be evidenced by acts of self-mutilation), would be a sufficient disruption of the personality to constitute a 'profound disruption' [within the meaning of the federal anti-torture statute]." (page 16)

Really? Ya think?

Good God!
A committee of high-ranking attorneys for the government of the United States of America wrote this!
What is happening to us?
How can we stop it?

Someday, when a full history of this incredible period is written, surely there will be a small chapter devoted to the injury that this Justice Department is inflicting on the role and reputation of the government lawyer.

I know we've all grown accustomed to the idea that the ambulance-chaser who advertises on the back cover of the phone book lacks a moral compass. There's not a whole lot of damage to the image of the private attorney in our society that this crew at DOJ can do that we as a profession haven't already done to ourselves.

But the government lawyer -- that's a different story. Or was.

Remember: Attorney General Francis Biddle insisted to President Franklin Roosevelt that the War Department's plan to evict and incarcerate American citizens of Japanese ancestry was illegal and unnecessary. The Justice Department's two top leaders resigned rather than carry out President Nixon's order to fire the late Archibald Cox.

How can we square such stories of courage and independence with this Justice Department's sorry efforts to provide a legal theory that would justify torture?

The Washington Post gets it entirely right:

"There is no justification, legal or moral, for the judgments made by Mr. Bush's political appointees at the Justice and Defense departments. Theirs is the logic of criminal regimes, of dictatorships around the world that sanction torture on grounds of "national security." For decades the U.S. government has waged diplomatic campaigns against such outlaw governments -- from the military juntas in Argentina and Chile to the current autocracies in Islamic countries such as Algeria and Uzbekistan -- that claim torture is justified when used to combat terrorism. The news that serving U.S. officials have officially endorsed principles once advanced by Augusto Pinochet brings shame on American democracy -- even if it is true, as the administration maintains, that its theories have not been put into practice."

I haven't yet had time to read the DoD memo carefully; real life keeps intervening somehow. But it's hard to imagine I'll have much to say about it that Michael Froomkin hasn't already said.

Marty Lederman sent me this nifty little bibliography on the legal questions, which I pass along to you. You'll need Westlaw, Lexis, or a law library to find these sources:

John T. Parry & Welsh S. White, INTERROGATING SUSPECTED TERRORISTS: SHOULD TORTURE BE AN OPTION?, 63 University of Pittsburgh Law Review 743 (2002)

John T. Parry, WHAT IS TORTURE, ARE WE DOING IT, AND WHAT IF WE ARE?, 64 University of Pittsburgh Law Review 237 (2003)

Sanford Levinson, "PRECOMMITMENT" AND "POSTCOMMITMENT": THE BAN ON TORTURE IN THE WAKE OF SEPTEMBER 11, 81 Texas Law Review 2013 (2003)

Seth F. Kreimer, TOO CLOSE TO THE RACK AND THE SCREW: CONSTITUTIONAL CONSTRAINTS ON TORTURE IN THE WAR ON TERROR, 6 University of Pennsylvania Journal of Constitutional Law 278 (2003)

Marcy Strauss, TORTURE, 48 New York Law School Law Review 201 (2003/2004)

Alan Dershowitz, THE TORTURE WARRANT: A RESPONSE TO PROFESSOR STRAUSS, 48 New York Law School Law Review 275 (2003/2004)

John Yoo and John Ashcroft, TORTURE, SCHMORTURE: THIS SORT OF KVETCHING JUST HELPS TERRORISTS!, 1 Baghdad University Law Review 55 (June 2004).

(OK, OK, so I made the last one up. So sue me.)

Here, in pdf format, are the first 56 pages of the Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, dated March 6, 2003. (It's a big file. 56k-dialup types beware!)

This is the report about which The Wall Street Journal reported yesterday, and about which Phil Carter, among others, has written.

I'm going to try to read it this evening, and maybe I'll have something to say about it later. Or tomorrow. But why read me, when you can read it yourself?

UPDATE: Actually, it looks like msnbc/newsweek beat me by a half hour. And they've got the whole thing, not just the first 56 pages. It's linked here.

The important Wall Street Journal to which Phil Carter drew our attention this morning is now available without a subscription here.

Read it.

Much is being said about it in the blogosphere, but I'd just like to harp on two things.

(1) The article reports that Justice Department lawyers reviewed this opinion on specific interrogation practices in or before April of 2003. Deputy Solicitor General Paul Clement told the Supreme Court that the Executive did not engage in "mild torture" or "things of that nature" in April of 2004. We now have further evidence that this was a false representation by DOJ. The memorandum described in the WSJ article carefully parses what does and does not amount to "torture" technically defined -- so when the Justice Department told the Court that DOJ does not engage in "mild" torture "or things of that nature," this was at the very least grossly misleading, and more likely recklessly false. (I say "recklessly" because there's still no reason to think that Clement himself actually knew what he was saying was false. But if he didn't know, he certainly could and should have known.)

(2) How any constitutional lawyer could maintain that the President had the authority to authorize these sorts of practices that (even in the eyes of the administration's own lawyers) skate up to the edge of torture (and in my eyes go far beyond the edge) without some sort of congressional authorization is quite simply beyond me.

Devoted IsThatLegal readers may recall my quixotic efforts to use the Freedom of Information Act to learn about the potential involvement of DOJ's and other branches' lawyer's roles in approving of interrogation tactics that amount to torture.

I got my first response today! A lovely letter, from Robert P. Richardson at the Defense Intelligence Agency:

Dear Mr. Muller:
We have received your Freedom of Information Act request regarding the interrogation of individual [sic] suspected of association with the Taliban, Al Qaeda and/or enemy forces in the War in Iraq since September 12, 2001 and assigned it case number XXXX-XX. Please use this number in all future correspondence with us about this matter.
There is a substantial delay in processing requests, and it is impossible for us to forecast when your case will be completed. We solicit your patience and understanding and assure you that we will process your request as soon as possible.
Sincerely,
ROBERT P. RICHARDSON
Chief, Freedom of Information Act Staff

Does this mean I should stop holding my breath?

Phil Carter points us to another government memo on torture. Sort of a "how-to" guide. This one's from DoD.

I still want to know whether this sort of thing made its way over to Justice, and if so, who there saw it, and when, and what they had to say about it.

Just watched the trailer for Michael Moore's Fahrenheit 9/11.

Holy crow.

The very last scene, of our Fearless Leader on the links, is not to be believed.

My wife and I have to replace our aging camcorder, which is a couple of months older than our older daughter(who just turned 10).

I spent an hour or two looking into the technology and am dizzy.

We don't want to spend more than 5 or 6 hundred dollars, tops.

Suggestions, either about wise choices generally, or about specific models to pursue or avoid, are welcome.

Early this week, the Justice Department shared with the nation and the world its account (naturally entirely one-sided) of the suspected activities of Jose Padilla, after rushing that account through the declassification process. That account, among other things, revealed substantial details about the alleged inner workings of al Qaeda.

Late this week, the government played for relatives of the airplane victims of 9/11 the tapes of the phone calls that their loved ones made as they flew toward their deaths. Not only was the press excluded, but those attending were compelled to sign a non-disclosure agreement as a condition of hearing the tapes.

And here's how the Justice Department explained the non-disclosure obligation to the grieving relatives: "The one thing that the [Justice Department] made irrefutably clear to us was that to the extent we disclose any information, we are only aiding the terrorists," said Hamilton Peterson, whose father and stepmother were on United Flight 93. (Quote is from this story on cnn.)

So we learned last week that the Justice Department can itself declassify and globally disseminate all sorts of selective incriminating information about Jose Padilla and his contacts within al Qaeda while Padilla's case is pending before the Supreme Court, but that talking publicly about a phone call from a victim of the 9/11 attacks is "aiding the terrorists."

How much longer are we going to tolerate this extraordinarily manipulative and self-serving "management" of information by the current Administration?

The writing in the New Yorker sometimes rises to perfection, or damn close. Consider this paragraph from the pen of Roger Angell:

Loss is the common currency of family tales—who doesn’t have a sad ancestor or a stopped child to tell about?—but it isn’t talked about much, out of respect for others, whose news, come to think of it, is probably worse than our own. “Get over it!” is the cry I hear lately in conversations about some mopey pal or once happy couple, by which we mean shut up about it, give us a break. My grandfather Charles Sergeant, a stooped, sweetly polite man, painted oil landscapes in his old age, standing before his easel in tweeds, with an incessant ash hovering on the tip of his Chesterfield. He could not have forgotten his early orphaning or the sudden loss of his young wife, but he never got around to such matters at the dinner table. I am his age now, and find myself wondering what he thought about late at night in his bedroom, or in the unexpected moment when his gaze lifted from the sunlit cove or difficult oak he wished to capture on his little canvas. I could also jump back a good deal farther here and speculate in similar fashion about Captain John Sheple (as the name was then spelled), the murdered James Shepley’s great-great-great-grandfather, who at seventeen was captured by the Abenaki Indians on July 27, 1694, in a raid on Groton, Massachusetts. He was one survivor of a massacre—it was an early skirmish in the French and Indian Wars—that took twenty-two lives, including those of his parents and his two siblings. After a captivity of more than three years, he returned to his native town, where he married, produced five children, and, in the words of a local historian, “held many offices of trust and responsibility, both civil and ecclesiastical.” His memories are not mentioned, and no wonder.

I'm ultimately a bit perplexed by the absolutely lovely essay from which this is excerpted. I'm not sure I know what Angell means when he asserts, just before the end of the piece, that "we get over it." (You'll have to read the essay to understand what he was talking about, but it'll be well worth your time.) Perplexed or not, though, you'll have to admit: this is outstanding writing.

"It isn’t every day that the Presidential nominee of the Democratic Party is a junior senator from Massachusetts who was educated at an élite boarding school and an Ivy League college and whose political career was founded on his war heroism as a young Naval officer in command of a small boat and who has family money and a thick shock of hair and a slightly stiff manner and beautifully tailored suits and an aristocratic mien and whose initials are J.F.K."

--Hendrik Hertzberg, in this week's New Yorker

The House Democrat leadership is demanding a laundry list of documents from the Administration on prisoner abuse.

This is a welcome demand. It will be rejected, but it's important to keep asking.

Whoa. Cool. Lyle Denniston is going to be writing for SCOTUSblog.

Damn, but it's a busy morning for blogging!

Get a load of this: Spurred by the Justice Kennedy's citation to decisions of foreign courts in his opinion for the Court last Term in Lawrence v. Texas (which overturned Texas's criminal prohibition of gay sex), a bunch of congressmen -- including, distressingly, Jim Sensenbrenner, the Chair of the House Judiciary Committee -- have introduced a resolution expressing the sense of the House of Representatives that American judges should not rely "in whole or in part" on "judgments, laws, or pronouncements of foreign institutions."

I would like to say something about this absurd piece of xenophobic ignorance, but I have the feeling that heads of the sponsors of this resolution are so far up their asses that they wouldn't be able to hear me.

These, by the way, are the brilliant sponsors: Mr. Feeney (for himself, Mr. Goodlatte, Mr. Ryun of Kansas, Mr. King of Iowa, Mr. Souder, Mr. Chabot, Mr. Smith of Texas, Mr. Shadegg, Mr. Hostettler, Mr. Pitts, Mr. Herger, Mr. Forbes, Mrs. Jo Ann Davis of Virginia, Mr. Franks of Arizona, Mr. DeLay, Mr. Bartlett of Maryland, Mrs. Musgrave, Mr. Pearce, Mr. Otter, Mr. Akin, Mr. Jones of North Carolina, Mr. Crane, Ms. Harris, Mr. Smith of New Jersey, Ms. Hart, Mr. Pickering, Mr. Keller, Mr. Tiahrt, Mrs. Blackburn, Mr. Green of Wisconsin, Mr. Weldon of Florida, Mr. Goode, Mr. Culberson, Mr. Sullivan, Mr. Garrett of New Jersey, Mr. Wilson of South Carolina, Mr. Sam Johnson of Texas, Mrs. Cubin, Mr. Blunt, Mr. Tancredo, Mr. Camp, Mr. Hoekstra, Mr. Cantor, Mr. Chocola, Mr. Kline, Mr. Hensarling, Mr. Smith of Michigan, Mr. Istook, Mr. Aderholt, Mr. Lewis of Kentucky, Ms. Ginny Brown-Waite of Florida, Mr. Cannon, Mr. Pence, Mr. Sensenbrenner, Mr. Ose, Mr. Neugebauer, Mr. Toomey, Mr. Rogers of Alabama, Mr. Renzi, and Mr. Flake)

OK, that's enough of the uplifting school stories. Here's a depressing one: the Chairman of the school board of the county where I live was invited to give the commencement speech at the county high school.

The speech he gave was a commencement address, delivered years earlier by former HHS head Donna Shalala, that he found on the internet by typing "graduation speech" into google. He did not attribute the speech to Shalala, but said that he had written it.

Now there's an example of academic integrity for ya.

A forest that is the one of a small handful of wintering sites for the Monarch butterfly in Mexico is being destroyed by illegal logging.

Some eight-year-olds here in Chapel Hill are doing something about it.

It's a touching story.

Today the New York Times was good enough to include this detailed roster of the new Iraqi government, which will make it much easier to keep track of the assassinations.

Dabney, a friend here in Chapel Hill, has joined the blogosphere. So far, she's got some thought-provoking stuff up about parenting, among other things. Also an interesting ethical question: would you read your nanny's (or your babysitter's) diary, if it were available to you and you had worries about the nanny's (or babysitter's) stability?

Check her out. Leave a comment. Welcome her to the blogosphere.