Discourse.net

Torture Spin

One objective of the Bush Administration’s modified limited hangout on the Torture Memos and the accompanying partial data dump, has been to sell the voter, and the chattering classes, the story that while some lower-down officials were having philosophical discussions about torture, none of this was ever reflected in the actual orders given by higher ups.

There are a large number of reasons to be more than a little wary about this spin on the story.

First, there are the obvious gaps in the story provided by the Administration — less and less information about the orders given by higher-ups as we get closer to the present day, the period in which administration desperation about events in Iraq could only have increased.

Second, there is the absence of any information about the instructions to the CIA at any time.

Third, there is the bureaucratic reality that the vast number of memos and working groups were not the result of spontaneous organizational combustion. People very close to the top asked for those. We know Rumsfeld and Gonzales did; we don’t know how much they consulted with their boss, and he’s having memory problems on the subject of torture.

Fourth, we know that the proponents of torture were not just philosophizing, or casting about for policy options, or presenting balanced options to their bosses, but rather were so intent on getting their way that they ruthlessly cut their bureaucratic opponents out of the loop.

According to today’s Washington Post, in January 2002, the State Department Legal Advisor — one of the higher ranking lawyers in government, and traditionally an authoritative interpreter of existing treaties within the executive branch — opined that the Justice Department approach to the torture issue and to the Geneva Conventions was

“seriously flawed” and its reasoning was “incorrect as well as incomplete.” Justice’s arguments were “contrary to the official position of the United States, the United Nations and all other states that have considered the issue,” Taft said.

That letter somehow didn’t get into this week’s data dump. Nor did the reaction from Justice and Defense: they started trying to exclude the weak-livered folk from State from meeetings.

One result of the rancorous debate, according to participants, was that Yoo, Attorney General John D. Ashcroft and senior civilians at the Pentagon no longer sought to include the State Department or the Joint Staff in deliberations about the precise protections afforded to detainees by the Geneva Conventions.

For example, the officials said, a 50-page Justice Department memo in August 2002 about the meaning of various anti-torture laws and treaties was not discussed or shared with the Joint Chiefs or the State Department. It was drafted by Justice for the CIA and sent directly to the White House.

(I happened to be talking to a mid-level foreign service officer, who is not a lawyer, last week and he expressed his disgust that the US government had, for the first time, interpreted treaties without even consulting the state department.)

These actions are consistent with a picture of an administration that sought a way to use, and intended to use, violence to question people. It is not airtight proof, and one hopes they pulled back from the brink…but at the very least there are many questions left to answered.

Oren Gross on Torture: Ban It Always, Treat Rulebreakers as Circumstances Warrant

Talk about timely scholarship! Prof. Oren Gross of U. Minn. Law has just published Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2004).

Here (minus the footnotes) is his conclusion to a long and complex argument, a conclusion which resembles my views, right down to citing Charles L. Black, Jr. approvingly, but ultimately come out somewhat more accepting of the idea that although torture should always be prohibited in order to discourage resort to it in any but the most extreme circumstances, there exist sets of real-life circumstances were torture might be morally justified, and thus would and should be publically pardoned or praised after that fact:

… the official disobedience model imposes a significant burden on public officials. They must act in the face of great uncertainty. At the same time the model does not completely bar the possibility that interrogational torture will be used by officials and later ratified by the public. It simply makes it extremely costly to resort to such drastic measures, limiting their use to exceptional exigencies. As Sanford Kadish notes, “Would not the burden on the official be so great that it would require circumstances of a perfectly extraordinary character to induce the individual to take the risk of acting? The answer is of course yes, that’s the point.”

The Man Who Didn't Keep the Secrets Wants them Back

Jurist reports

Government watchdog group Project on Government Oversight (POG0) filed suit against Attorney General John Ashcroft Wednesday over the reclassification of documents relating to a whistleblower’s claims of security lapses in the FBI’s translator program. POGO argues that reclassifying documents that were previously in the public domain is illegal and unconstitutional. During testimony before the Senate Judiciary Committee earlier this month, Ashcroft took responsibility for the decision to classify the documents, citing US national interests. AP has the full story. POGO provides background on the retroactive classification.

I had thought the question of classifying public domain information was settled long ago in the ‘classified at birth’ debate, when the government climbed down from its assertion that some scientific discoveries with military implications (e.g. strong cryptography or strong decryption methods) could be classified even if derived entirely from non-classified sources by persons unaffiliated with the government.

The seemingly technical question of the government’s ability to classify public information is in fact very important. If Ashcroft were to get his way, the government would have the ability to shut down debate on a set of public policy issues by waving a classified stamp. That would take us another (not-so-little?) step in the direction of authoritarian government.

Subtext of Bush Overture to Korea

The Bush administration has made an offer to North Korea on the nuclear issue that sounds suspiciously, no exactly, like the offers they derided Clinton for making. See The Poor Man: Steady Leadership Watch for details, necessary flip-flop comments, general and earned snark.

I want to highlight a slightly different aspect of this development. The Bush offer is likely to be seen by N. Korea — more importantly, by other US adversaries (think, “militant Iraqis”) — as a sign of weakness: the Bush administration, sagging in the polls, goes shopping for foreign policy deals that can be marketed domestically as “victories’.

A foreign perception of a weak, anxious, maybe desperate, Administration eager to make deals for short term political gain means that our adversaries will drive the hardest bargains they can, thinking that the deals on offer will never be this good again. As a general matter, that’s bad for the US whether this foreign perception is right or not, as we’ll either have to give up more, or won’t be able to come to agreement.

It’s not just strong Presidents who are dangerous; weak Presidents are dangerous too, just in different ways.

June 23, 1989

Today is our 15th wedding anniversary. We’ve known each other 20 years, more than half our recalled lives.

Adminstration: Torture Memos Inoperative

Just spotted in the Washington Post, Document On Prison Tactics Disavowed :

In a highly unusual repudiation of its department’s own work, a senior Justice official and two other high-ranking lawyers said that all legal advice rendered by the department’s Office of Legal Counsel on the subject of interrogations will be reviewed.

Guess that means those old legal opinions are inoperative now. It’s about time. (Don’t suppose Judge Bybee will be asked to resign do you? Nah.)

It’s unclear from the Post article whether the royalist theory of Presidential power, endorsed by Bush himself, is also being disavowed, but I’d say it going to remain part of Administration doctrine or they wouldn’t have released a memo Bush signed approving of it.

Also,

Gonzales … refused to comment on techniques used by the CIA, beyond saying that they “are lawful and do not constitute torture.” He also would not discuss the president’s involvement in the deliberations.

A separate Post article notes that,

In December 2002, as Pentagon officials were trying to get detainees to offer more useful information about al Qaeda, Rumsfeld approved a variety of techniques, such as stripping prisoners to humiliate them, using dogs to scare them and employing stress positions to wear them down, the documents show. The tactics also included using light and sound assaults, shaving facial and head hair and taking away religious items.

Pentagon officials say most of the techniques were never used, and a Pentagon working group recommended that Rumsfeld roll back these methods. In a memo to the defense secretary in March 2003, the group wrote: “When assessing exceptional interrogation techniques, consideration should be given to the possible adverse affects on U.S. Armed Forces culture and self-image, which at times in the past may have suffered due to perceived law of war violations.”

A third Post article, which sounds awfully like White House talking points, suggests that liability concerns about the Torture Act, and especially the fear that anything less than a Presidential permission slip might open the door to prosecutions, drove Ashcroft to urge Bush to allow more violence than State or military lawyers wanted. Why Ashcroft didn’t trust the troops to obey the law, and wasn’t willing to see the bad apples tried, is not made clear in this recitation of talking points.

Are we really expected to believe the Iraq atrocities, and the Administration climate which circumstantially appears to have enabled it, was caused by….an absence of tort reform?

(Actually, on reflection, that’s unfair: the legal action would have been criminal prosecution, not civil. So it was a real fear of US Attorneys?)

Bush Ordered "Humane" Treatment in Feb. 2002. Then What?

This evening the White House released the text of an order signed by President Bush on Feb. 7, 2002, regarding the treatment of al-Qaida and Taliban detainees.

This Bush order applies to the Afghanistan Taliban, and to alleged al-Qaida members in Iraq and worldwide; it says they don’t have rights, but doesn’t say that they should be tortured; rather it says they should be treated “humanely” and that they should be given Geneva-like privileges when not too inconvenient to do so.

The order accepts the Royalist theory of Presidential power, but says it declines to apply it: “I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.”

al-Qaida and Taliban fighters are claimed to all be outside the Geneva 3 framework (POWs) regardless of citizenship or circumstances. [And presumably it’s possible to tell who is al-Qaida and who isn’t just by looking at them?]

al-Qaida members are claimed be outside Geneva 4 (protection of civilians) regardless of citizenship beause they are “armed combatants” (even when not carrying weapons?).

The key command: “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

On its own, this reads as an instruction to be humane at all times, and to follow Geneva when not too inconvenient. Whether this complies with international law or not, it does not read as a license to torture, which is presumably why the White House is releasing it. Note, however, that this order would, for example, be a license to create “ghost” detainees from among the Taliban and al-Qaida (but not other Iraqis).

Note also what’s not there. For example, nothing in this memo seems directed to the CIA, just to the military. I wonder if there’s a separate order for the CIA with more … flexibility?

It’s also important to keep the confusing timeline straight. The OLC torture memo was delivered in August 2002, i.e. several months after this order. Thus, it is clear that this command, in Feb. 2002, to be “humane” was not the last word on the subject in the minds of all policy makers, including the President’s closest advisors such as his Legal Counsel. And we know that the Walker Group was still chewing on the torture question in March 2003, although we don’t know what if anything came of it.

In short, we don’t know if this memo was ever countermanded, or amended, whether it applied to the CIA, or indeed what if anything ultimately resulted from subsequent advice to Bush that he could allow great physical pain to be applied during questioning of detainees. We do know, however, that as early as February 2002, in this memo, Bush had signed on to the dangerous theory of nearly unlimited Presidential power that informed the torture memos. We also know that in those months after this memo issued, many people around Bush were recommending, or prepared to recommend, that inhumane conduct was legal and justified.

UPDATE: The New York Times reports

White House counsel, Alberto R. Gonzales, told reporters on Tuesday that Mr. Bush never considered more aggressive options set out by administration lawyers, including those in an August 2002 Justice Department memo that appeared to offer a permissive definition of torture.

Full text of the Feb. 7, 2002 Bush order below.

More on Compromise, Elections, and the Lessons of Clinton

The Decembrist: The Many Presidencies of Bill Clinton contains further thoughts on my tactical disagreement with Brad DeLong.

There are many points, but the most interesting of all is this one:

I agree that I don’t want to concede all of this in July of the election year. That’s why making McCain the VP probably wouldn’t have made sense. A candidate cannot put forth a persuasive agenda for renewal and simultaneously acknowledge how much of it he will have to compromise on. But, by the same token, I want to avoid the cycle of disappointment when Kerry faces the recognition that his power to implement an agenda depends on his finding a working relationship with Congress.

To which I replied in the comments,

As for the danger of raising expectations, there is simply no choice. You don’t get elected dogcatcher by beeing gloomy and without offering a vision that makes people hopeful.

It’s no accident that he word the Bush campaign most uses about Kerry these days, even more than flip-flop, is “pessimistic”. I bet the focus groups tested wild in favor of “optimism”—and it’s so easy to claim that any suggestion that the administration is incompetent and things are going badly as “pessimism”. The reporters write it right down…

AP Sues for Access To GWB Military Records (What Took You So Long?)

AP suing the Pentagon to get 100% of GW Bush’s service records. It has always seemed odd to me that (1) Bush did not in fact ever make all his records available, and indeed reneged on his pledge to do so; (2) requests for the records now go through the White House; (3) there are things missing that have no right to be missing, notably the discharge papers with their separation codes; (4) no one in the press seemed to care about the loose ends in the story.

Is it a coincidence that this law suit comes just after Bush starts falling in the polls? I would hate to think the press corps was so craven that they only dare ask hard questions when they smell blood. But how else to explain the timing?

GW Bush's Constitution: A Graphic Depiction

Inspired by Saul Steinberg’s View of the World from 9th Avenue Ernest Miller has produced a graphic depiction of The Constitution According to Bush (.pdf).

I Signed the Law Professors' Letter on Iraq

Just thought I should mention that last week I signed the Law Professor’s Iraq Letter. Its concluding paragraphs ask Congress to:

(1) assess responsibility for the abuses that have taken place, identifying the officials at all levels who must be held accountable for enabling these abuses to occur and for the failure to investigate them, and determining what sanctions, including impeachment and removal from office of any civil officer of the United States responsible, may be appropriate;

(2) decide whether the U.S. should have an official policy of coercion in connection with interrogation, and if so what form it should take as well as what safeguards it should include to protect against abuses in violation of the policy.

There were about 500 signatories, almost all law professors. I’m sure they would have had more if there had been more time to organize signatures or if were not the summer vacation season.

Same Old Detention Rules, or Almost?

Will someone with a Wall St. Journal account please read this Talkleft item, New Guantanamo Rules Not Much Better Than Old Rules, follow it to the WSJ link, and then tell me how the so-called “alternate procedure” (described there as a contingency plan if the Supreme Court rules against the current prison regime) differs in any notable particulars from the series of one-sided hearings the Pentagon announced it planned anyway way back in February.

From the short description they sound very much alike.

Imagine if This Had Happened in the Clinton Administration

Since it is Clinton nostalgia week in the US, join me in a little game. (Before tenure we called these “thought experiments”.) Imagine how the press would have played it if this story had broken during the Clinton administration:

How secure is the Department of Homeland Security?:

The policy director for the Department of Homeland Security’s intelligence division was briefly removed from his job in March when the Federal Bureau of Investigation discovered he had failed to disclose his association with Abdurahman Alamoudi, a jailed American Muslim leader. Alamoudi was indicted last year on terrorism-related money-laundering charges and now claims to have been part of a plot to assassinate Saudi Arabia’s Crown Prince Abdullah.

After a flurry of interagency meetings, however, Homeland Security decided to leave the policy director, Faisal Gill, in place, according to two government officials with knowledge of the Alamoudi investigation. A White House political appointee with close ties to Republican power broker Grover Norquist and no apparent background in intelligence, Gill has access to top-secret information on the vulnerability of America’s seaports, aviation facilities and nuclear power plants to terrorist attacks.

I bet the rest is good too, but you have to register or watch ads or something to read it.

Govern from Strength if You Can

Mark Schmitt, the Decembrist (a blog I like a lot) has advice for John Kerry about Negotiating With the Republicans, which amounts to, ‘be a centrist, divide the Republican party’.

Brad DeLong, thinking like a smart White House staffer, thinks it is Good Advice. I beg to differ: it may be good January 2005 advice but it is rotten June 2004 advice.

I suspect that Brad’s political reflexes were fixed by his service in the Clinton administration. Clinton never governed like he had a mandate (arguably, because he didn’t have much of one the first time). He triangulated. He fogged about. He appointed Republicans as judges, and many Democrats who might as well have been Republicans. But that’s a rotten way to govern if you have a choice when the other side uses a different play book. And Presidents early in their terms often do have a choice—even if they don’t have a majority in either or both houses—so long as they can persuade Congress that they have a mandate, or create political conditions such that Congresspeople are unwilling to cross the President (think about why so many Democrats voted for Bush tax cuts).

Clinton exposed the mushiness of his political spine and his inability to use what political capital he had in the first days of his Presidency when he backed down on gay rights in the military. The signal to Congress was clear—if the guys who have a legal duty to salute and obey their commander in chief could roll the guy, there was no reason at all to give him an inch. He reaped the reward in the health care debate (OK, there were other good reasons [can you say “IRA”?] why it died, too). Clinton rarely if ever punished his enemies in Congress. He wasn’t good enough at rewarding his friends, either. But that doesn’t have to be the script for Kerry.

Suppose Kerry wins by a landslide — it could happen. Suppose he runs a campaign which is about restoring honor and decency to the White House, about repudiation of torture, sleaze, special interests, and, say, his limited health care plan. There’s no reason to compromise on whatever he makes his signature issues. Certainly there’s no reason to surrender preemptively now, before the votes are counted. Plenty of time for compromises later.

That said, if there issues where Kerry genuinely has a wedge in the Republican party, such as deficit reduction, by all means campaign on it and use it. But don’t give up stuff we care about—until January at the earliest.

Hiibel Loses 5-4 On Narrowest Grounds

Hiibel lost today, 5-4, but on narrower grounds than you’d guess from reading the case summary which says baldly that he lost on both 4th and 5th Amendment grounds. It’s pretty much a disaster on the 4th, but the 5th is only a part disaster. Most importantly, the Court punted on the issue of whether the 5th Amendment would apply if the suspect really had something to hide. Justice Kennedy’s majority opinion says that since Hiibel had not only nothing to hide but no reason to think he did, he can’t take the 5th.

Of course there’s a catch-22 there: if you can only assert the 5th when you are guilty, or near guilty, or reasonably fearful you are guilty, that suggests the cops ought to be investigating you, which pretty much undermines the privilege.

But at least the issue survives, however mangled, for another day.

The dissents are here and here.

One down, six to go….

Update: I forgot to mention that although the media will say the case states that “police can require IDs” what it actually states is that legislatures can require suspects to tell police their names (not ‘show ID’—the majority states that the statute at issue is satisfied by an oral statement) when the police have a reasonable suspicion that a crime has been committed, the person is relevant, and are investigating it. The distinction will undoubtedly be lost on the ground, and erased by subsequent cases, but it’s there for now.

Supreme Court To Decide Major Cases Soon

As is commonly the case, the Supreme Court has left most of its major decisions for the end of the term. This year, however there are a greater number of important cases, with more major consequences, than usual. Some will likely be decided today or tomorrow.

There are seven cases I’m watching with particular interest.

Freedom and Republican Government

1. Cheney v. U.S. District Court has to do with the Congress’s powers to force disclosure by the Executive, in this case who attended Vice President’s Cheney’s secret meetings with oil executives in which they mapped out US energy policy. A finding for the Executive would advance the Royalist vision of the executive; a finding for Congress would preserve the status quo, or maybe eliminate some doubt about whether Congress really has the authority it has claimed for at least a generation. There are also many ways to split the baby.

2. Ashcroft v. ACLU is a First Amendment challenge to the Child Online Protection Act. There’s some justice on both sides, but were the court to rule that web publishers must require their readers to prove their age before being allowing them to view any web pages that might infringe the vague “harmful to minors” standard, it would transform the Internet into gated communities…or drive web sites abroad. Again, there are ways the court could punt, too, and I wouldn’t be shocked by yet another remand in this torturous case. Unfortunately, the Supreme Court has a tendency to lose patience at some point with cases that bounce up and down and try to decide them. That could be ugly.

3. I’ve written previously about Hiibel v. 6th Judicial Dist. Court of Nevada, calling it a case to watch. I’m watching this one with particular interest, since it will have so much impact on any potential US law on national ID cards. [Decided 6/21]

The biggest cases, however, have to do with four wars: the War on Drugs, the War on Terror, the War in Afghanistan and the War in Iraq.

Of these cases, three will help define how decent a country we are. But one, the most important of all, will decide whether or not we are still a free country. Sound melodramatic? I wish it were.

Decency

4. If the US invades a foreign country, kidnaps a foreign national, drags him back to the US to try him on charges of aiding the murder of a US DEA agent, but it’s all a ghastly mistake and he’s acquitted for lack of evidence, can he sue for damages and false imprisonment? If the relevant statute applies to domestic conduct only, do we look to where the kidnaping happened (Mexico) or where it was planned (Washington) as the relevant place for deciding if the statute applies? Those are some of the questions in Sosa v. Alvarez-Machain and U.S. v. Alvarez-Machain. Another is the Royalist claim that Congress lacks the authority to make rules restricting the Executive Branch’s kidnaping of foreigners abroad on the theory that this would infringe the President’s foreign affairs powers, and harm the War on Terrorism.

5. Rasul v. Bush and Al Odah v. U.S put the decency and Presidential power issues in starker terms, as they challenge the claim that our government can create an anything-goes zone in Guantanamo Bay, free from any judicial interference or review—even a writ of habeas corpus—a writ which can only be suspended in wartime, and which has not been suspended since the Civil War. An underlying issue is the extent to which the US Navy station in Guantanamo is inside or outside US jurisdiction given that Cuba retains formal sovereignty—but not other power or control whatsoever so long as the US uses the territory for a naval base. Prior relevant posts on these cases in my Guantanamo section, especially these:

• Guantanamo: Our Collective Shame
• Even If US Courts Don’t Have Jurisdiction Over Guantanamo, There Is No Recourse to Cuban Courts
• US Jurisdiction in Guantanamo — Some Complexities
• What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows
• Not As Hypothetical As I’d Like
• ‘Senior Defense Official’ Plans to Hold Guantanamo Detainees Pretty Much Forever

6. Then there’s the odd case of Hamdi v. Rumsfeld. Hamdi is a US citizen captured in Afghanistan, some disputed distance from if not actually on the field of battle. Our government labeled him an “enemy combatant,” said he had neither the rights of a US citizen nor of a POW, and has him on ice in solitary, in a military prison. It has not charged him with a crime, and claims no duty to do so. Here there’s no question about jurisdiction for the a writ of habeas corpus since Hamdi is now in the US. What’s at issue is whether the government’s uncorroborated statement that Hamdi was “affiliated with a Taliban military unit and received weapons training” (note: not even ‘took up arms against the US’!) is unquestionable and final, or if Hamdi gets a day in court. Again, the case raises question about the extent of executive power in “wartime”—especially since the War on Terror is a “war” that likely has no ending point.

The Big One

I think all the cases above matter a great deal. A bad decision in any of them — and given this court one has to expect some bad decisions in some of them — will make this country less free, less self-governing, or less decent. But none of these would be fatal to our democracy. The harms Hiibel might do could be undone by legislation; Hamdi perhaps less so, but at least the untrammeled hunting license it would create would only apply to US citizens abroad in, one hopes, battlefield or near-battlefield conditions. But Padilla is different.

7. I don’t think the public really understands how much is at stake in Rumsfeld v. Padilla. I’ve written about it many times, but only recently worked out that the issue is even graver than I previously understood.

The basic question in Padilla is very simple: can the federal government grab a citizen off the street and hold them in a military prison without charging them with a crime, without giving them a hearing or a trial, without access to lawyers, family, friends. And, can it do it indefinitely. If the answer is yes it can, then our citizenship is devalued to nothing better than that of the citizens of Argentina during their military dictatorship, a period in which thousands disappeared into military jails, many never to emerge.

Does that sound over-wrought, given there’s only one person so far, and he hasn’t by all accounts, been tortured (other than being confined in solitary with no prospect of emerging) or killed? I don’t think so for two reasons.

First, we don’t call them “precedents” for nothing. If we set the precedent that people can be grabbed off the street, next time Ashcroft, or some future Ashcroft, or some horrible cross between Nixon, John Adams and Burr, won’t bother going through the civilian justice system at all (which is how Padilla’s case got attention — he was first held as an ordinary criminal, and it was only when the government realized it didn’t have the evidence to try him that they decided to reclassify him as an enemy of the state illegal combatant, and put him in the brig). Next time, whenever that is, the victim will just vanish.

That’s bad enough. But I don’t think I understood how much was a stake until I read the Torture Memos. Those memos claim the right to legally inflict hideous intentional pain — what I and most people would call torture — on enemy combatants. That’s right—on people whom this administration considers equivalent to Padilla. So the US government is not only asserting the right to Disappear people, but to torture them in secret as well.

It seems government lawyers have been having cold feet about the likelihood that the Supreme Court will endorse this argument. (Law clerks blabbing? Lawyers realizing how evil their arguments are? Cynics thinking the Justices will be influenced by the Iraq torture headlines?) And well they should, as it is despicable. It deserves to lose 9-0, although no one I know is bold enough to predict that will actually happen, myself included. Yet any vote in favor of the government’s arguments is a vote for authoritarian government at best, and a blow to our freedom greater than anything even all the other cases above together could manage.

Were Padilla to lose, it would blow a hole in the Constitution, one that would take a constitutional amendment to fix. I am confident the Supreme Court will not take us there, but if I’m wrong about that, it’s the start of a long, long fight.

Intelligence Value of Guantanamo Detainees "Repeatedly Exaggerated"

Now that the Supreme Court is getting ready to rule any day now on a case in which a key part of the US case is the incredible military value of the Guantánamo Detainees, what do we learn…what we suspected…U.S. Said to Overstate Value of Guantánamo Detainees:

… an examination by The New York Times has found that government and military officials have repeatedly exaggerated both the danger the detainees posed and the intelligence they have provided. …

The problems of collecting information about the detainees have also hampered their screening for possible release. As a result, some of the men are being held apparently as much for what officials do not know about them as for what they do.

The Bush DC Circuit Nominee Who Neglected to Renew His License to Practice Law

I happen to think the bar exam is a little silly. I happen to think that the division of the Union into 54 or more jurisdictions that keep out lawyers from elsewhere is anti-competitive. I also understand the rules we have are formalities I better take seriously or I am in trouble, and make sure to renew my NY and DC bar memberships as soon as the notices come in — just to make sure I don’t misplace them.

Looks like DC Circuit nominee Thomas B. Griffith didn’t get that last part, leading the Washington Post to report that Judicial Nominee Practiced Law Without License in Utah.

Fundamentally, this is just careless. But it’s the sort of carelessness in a lawyer, given our existing rules, that rises to pretty serious negligence. It suggests corner-cutting, or an attitude of being above the rules, or just general disorganization … any of which I think is sufficient reason to reject even an otherwise qualified nominee. Furthermore, practicing law without a license is usually a fairly serious offense in most states. In this case, though, there may be a dispute about the extent to which Mr. Griffith actually engaged in authorized practice or instead managed to cover himself with local counsel.

Unauthorized practice is a subject near and dear to my heart, as I practiced international law for three years in the London office of a US firm, without an English law degree and without being either a solicitor or barrister. Unlike the US, the UK allows that — the offense there is holding yourself out as something you are not. But even so, to the great amusement of my English colleagues, I refused to sign any letters that contained opinions on English law, even if I had done all the research and drafted them. My English supervisors signed them, laughing all the while at my American formalism and punctilio.

Of course, Republicans, who preached so much about the need for exacting regard for state formalies during the recount period in the last Presidential election, will undoubtedly be the first to take a similar approach, and to say that this nomination should not go forward.

(And I have a bridge to sell you.)

The Marines Knew How to Do It Right

One thing I hear a fair amount¹ is people saying that since the Iraqis/Arabs/whatevers are so inhuman to “us”, it’s ok, indeed both just and desirable, for “us” to do “whatever it takes” or “give them what they deserve”. I take that to mean that because there are some vicious Islamic terrorist groups out there, and because some Arab governments repress their own peoples, it follows that the citizen-soldiers of our democracy should regress to bestiality either for retribution or deterrence. Neither one of which I find either persuasive or even palatable.

Our country’s history offers a better lesson, documented in a wonderful New York Times story in today’s paper, Enemies in the Heat of Battle, Friends for 60 Years.

The campaign to get the Japanese out of their caves on the islands near Japan was as brutal and vicious as any in the second world war. The Japanese were considered by many to be exceptionally vicious fighters who didn’t always obey the laws of war (albeit more so in other theaters, those in which they had held the upper hand). Everything being said about Iraqis or Al Qaeda today was said about the Japanese sixty years ago, and worse.

Takeo Sato, then a Japanese officer, was part of the Japanese effort to defend Saipan, captured when part of his cave fell in due to naval shelling. He became the prisoner of Marine Lt. John Rich, who ultimately befriended his captive. When fortune found a demobilized Mr. Rich in Japan a few months after the war, he went to the homes of six POWs it had been his job to question, and told their families their sons were still alive. From this sprang an improbable but enduring friendship. Now Rich and his former prisoner, both in their eighties, are revisiting Saipan with their extended families.

It’s hard to imagine that we’ll be reading any stories like this about Iraq in our dotage. And therein lies part of the problem…

¹ [Update: Here’s Trent Lott in today’s NYT Magazine:

You recently created a stir when you defended the interrogation techniques at Abu Ghraib.

Most of the people in Mississippi came up to me and said: “Thank Goodness. America comes first.” Interrogation is not a Sunday-school class. You don’t get information that will save American lives by withholding pancakes.

But unleashing killer dogs on naked Iraqis is not the same as withholding pancakes.

I was amazed that people reacted like that. Did the dogs bite them? Did the dogs assault them? How are you going to get people to give information that will lead to the saving of lives?

Charming. (Incidentally the answers to the questions about the dogs are yes and yes.)]

Snark Shortage a Myth: Official

Billmon reports that not only is he back to snark hunting full time, but that there is plenty of snark to go around. (And if there isn’t we can always throw money at the problem.)

Link to great epic poem

Link to snarky software

Link to academic write-up of snark hunting

Link to Hi-test snark

Snark dating??? Must be a joke…