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Happy Thanksgiving

Senior UK Judge Attacks US For Guantanamo Detentions Without Trial

‘Monstrous US justice’ attacked by law lord. Very, very strong words about the Guantanamo detentions from a normally reserved senior English judge: “By denying the prisoners the right to raise challenges in a court about their alleged status and treatment, the United States government is in breach of the minimum standards of customary international law.”

Lord Steyn also called the proposed military commissions “a stain on United States justice” and predicted that they would be regarded as “kangaroo courts,” which he defined as an “irregular tribunal which makes a mockery of justice.”

One of Britain’s most senior judges condemned the American courts last night for a “monstrous failure of justice” by refusing to rule on the claims of Taliban suspects held without trial at Guantanamo Bay in Cuba.

Lord Steyn, a serving law lord, said the United States was acting illegally by holding the men without trial since their transfer from Afghanistan early last year.

…

Lord Steyn, 71, the third most senior law lord, said that under English law the writ of habeas corpus would protect citizens and foreigners. That was consistent with human rights law, which Lord Steyn concluded, the US had broken.

Grave Threat to National Security Apprehended

Atrios reports that they have caught the Republican hacker who’d been purlioning Democratic memos at the Senate Intel committee. Recall that according to no less an august figure than the Chair of the committee, the publication of one such purloined memo compromised the war on terror.

Supreme Court of Florida Appoints Committee on Privacy and Court Records

The Supreme Court of Florida has appointed me along with a bevy of state law luminaries to its Committee on Privacy and Court Records. You can read the Administrative Order (.pdf) and the Press Release. There is also a useful webpage with background information.

The tension between online public access to court documents and privacy raises really hard questions for which I have no ready answers. As an abstract matter it isn’t easy to say why if a record is ‘public’ in the sense of being available in the basement of a courthouse somewhere it shouldn’t also be available online for all of us who find it hard to get to that basement. On the other hand, as a realistic matter, some filings - especially pro se filings in family law cases - have lots of sensitive (and basically irrelevant) personal information that could easily enable identity theft. Putting that data online exposes people to substantial risks that it would be good to shield them from.

Florida law on procedure and on technology issues often serves as a model for South American courts, and even for other states. By addressing this issue directly, the Supreme Court is shouldering this responsibility in an admirable fashion.

Judging from the press calls I’m getting, the part of today’s order that will get people excited is the interim so-called “moratorium” (expiring not later than July 1, 2005) on the provison of certain information for posting online. But if you read the whole order, you see that the Supreme Court exempts large classes of judicial information from what it rightly calls a “limited” moratorium—so at least at first reading it is hard to see what legitimate interests will be seriously harmed by this temporary order.

If You Don't Ask, You Don't Get. But Some Things You Shouldn't Ask

In my experience, law students are generally nice people, and no more unreasonable than any other slice of the population of similar age and background. But there are exceptions.

The all-time exception occurred several years ago, when a shy quiet student from one of my classes came into my office saying she wanted advice on a personal problem. I closed the door and put on my best sympathetic face, which became increasingly difficult as she told me her story. It seems that she had been cooking in her rented apartment and ran out of cooking oil, so she dashed across the street to the store to get some more. Unfortunately, she left the wok on the lighted stove top, something caught fire, and she burned down her entire apartment, and caused serious damage to the two neighboring ones too.

Was her problem that the landlord was suing her? No (or at least, thought I, “not yet”.) Was anyone hurt? No. Were the police giving her a hard time? No. Troubles with the insurance company? No, she had no insurance. But that wasn’t the problem; no, the problem was much simpler: now that the apartment was unlivable, she’d had to move somewhere else and her ex-landlord was refusing to return her deposit.

Faced with such overweening chutzpah, all I could think to do was to shake my head ruefully and say, that while I was always happy to help students, this sounded like a job for local counsel and - alas! - I am not a member of the Florida bar. (I also resolved then and there never to join the Florida bar.)

I’m reminded of this tale because of an incident last week, the first of its kind. A student who did an independent writing project last year for me came by. As sometimes happens here, her preferred schedule leaves her one credit short of what she needs to graduate. Would I be willing to retroactively give her an extra credit for last year’s writing project?

I guess that’s less brazen than demanding back your deposit after burning down your apartment…but only just.

By Popular Demand: E-mail Notices of Updates

While I was at FSU, my interesting and charming host at FSU, Jim Rossi, asked if I couldn’t have some way to send out an e-mail when I update the blog. This turns out to be slightly more complex than I expected, but I think I’ve got a method that should work. Use this link , or look in the right margin under “Automatic Discourse”. Personally, I am using a news aggregator to read blogs now, but not everyone is up for that.

Movable Type has a feature that sends out e-mail notices. There’s even a way to give users the option of signing themselves up. But while there is standard code for users to manage their own sign-ON, there is no self-help for sign-OFF. (I started to write that this is “inexplicable” and then decided it’s probably because MT doesn’t have a challenge-response or password system to prevent folks signing others up or cancelling others.) While I’m always happy to provide functionality and gimmicks on this blog, and even to spend ridiculous amounts of time coding stuff up, I am absolutely unwilling to spend time dealing with the inevitable multitude of half-dozen people who having signed up decide they want off. It has to be a self-help system. And MT just doesn’t do that.

So the solution is to use regular mailing list software. I’ve tried to set it up so that only I can post to the list, and that any other attempt to post to it will cause a bounce or discard, but as the only way to test this properly requires some actual posts to the blog first, please treat as experimental for at least the first few days.

Am I The Weakest Link?

Slashdot | Web Pages Are Weak Links in the Chain of Knowledge (quoting the Washington Post’s On the Web, Research Work Proves Ephemeral). It’s true that linkrot is a serious problem. It’s also true that archive.org is only a partial solution since it doesn’t get anything and some big content providers — like the Washington Post — block it.

Is the only solution to make (copyright busting?) offline copies of everything? If so, where’s the tool that will automate that for me, and — more importantly — index all that content on my drive, disk, or tape?

Democracy Be Damned: Fla Pols Won't Fund Small Classes

The voters of Florida made it clear they want small class sizes in Florida primary schools, passing a state constituional amendment mandating shrinking class sizes over a ten-year period. Then the Governor of Florida, Jeb Bush, future presidential candidate, made it clear that he intends to subvert the voters’ will because nothing, not even children or democracy, is worth raising taxes for.

Now comes the the Republican leadership in the legislature to say that they just won’t even try to pay for small classes, because, really, what’s the point in doing that unless the voters again make it clear that they really meant what they said. Better first to try to get the voters to repeal the constitutional amendment in the hopes it will all blow over. King says state can’t pay for smaller classes. And, hey, lets make the next vote in a special election in August, when turnout in South Florida is likely to be at its lowest! “The people have to speak,” one of the legislative leaders said…ignoring the fact that they already did.

Here’s how I previously summarized Jeb Bush’s Machiavellian actions on class size:

Schools in Florida, especially South Florida, are beyond overcrowded. Even in rich neighborhoods like mine, classes are taught in trailers, in cramped rooms sub-divided by makeshift partitions that leak noise and light, and in generally cramped and shabby conditions. The voters enacted a cap on class size, codified at Art. IX, , § 1, of the state Constitution that otherwise would never have been approved by our Republican-dominated legislature, and is which is loathed by Jeb Bush because he understands that it will require taxes to pay for it, and new taxes undermine his Presidential ambitions. It’s pretty clear that the voters really do want more spending on education (although not as much as the scary and not very plausible numbers Jeb Bush made up to try to defeat it), and that our state government would have left the kids in huge clases but for this. It’s also pretty clear that Jeb Bush wants to roll it back. He’s spoken of ‘devious plans’ to kill the measure, and even endorsed a second initiative to roll back the first —an idea that got about zero traction other than from some his own appointees to a state education board.

Thanks to South of the Suwannee for spotting the story about the legislature. Now please get an RSS feed….

Off to FSU

I’m off to FSU to give a paper on national ID cards, and won’t be back until late Monday. Getting around Florida is actually more difficult than going out of state. But at least there are some direct flights to Tallahassee. In January I’m going to Gainsville, and it turns out that it’s not so easy to get there….

The FBI Awakens Unpleasant Memories

F.B.I. Scrutinizes Antiwar Rallies. It’s of course legal for the FBI to gather intelligence on groups it thinks are dangerous. On the evidence to date, however, whether that assessment is correct in the case of anti-Iraq-war rallies is dubious. And the FBI’s activities vividly awaken memories of the FBI’s of civil rights violations the last time a paranoid Republican administration was in the White House and demonstrators were massing to protest a war.

Meanwhile, someone please explain to me how the FBI’s large-scale, organized campaign of assembling dossiers on the polticial beliefs of citizens exercising their constitutional rights to demonstrate peacefully — even the FBI admits that it “possesses no information indicating that violent or terrorist activities are being planned as part of these protests” and that “most protests are peaceful events.” — is not intimidation but, “demonstrators’ ‘innovative strategies,’ like the videotaping of arrests” is “‘intimidation’ against the police”?

Think of that — the police are being intimidated by the threat that the demonstrators’ accounts might be corroberated by a video camera. Offhand, I think I approve of the sort of intimdation that records exactly what is happening and leaves no room for testilying.

Musings About Law School Teaching, Exams, and Grading

Class preparation was an unusually heavy chore this year as I not only taught International Law for the first time, but the authors of my Administrative Law casebook issued a substantially revised (and actually much improved) edition. It taught much better than the old version, but making the best use of it required much more thought than just tweaking my old notes. It was all rewarding work, but it took time.

I’m one of those people who likes teaching new things to keep myself fresh. In 11 years of teaching I’ve taught Constitutional Law I, Civil Procedure I, Jurisprudence, Internet and the State, Internet and the Market, Trademark, and seminars on E-commerce, Digital Intellectual Property, and Internet Governance. And in the only course I’ve taught consistently since I started here — Administrative Law — I’ve used three different casebooks over the years. Perhaps that is why one of my students said I’m one of the most enthusiastic teachers he has. The way he said it, it didn’t sound entirely like praise (it was almost, “what’s your problem?”), but it made my day.

As the semester winds to a close, the focus of daily activity turns from preparing for class towards writing and then (*sigh*) grading the final exams. Every semester is the same cycle. My students are very good in class — indeed this year’s International law students seem exceptionally good — and I get hopeful. Maybe this year will be the year I get a crop of great exams. And there usually are one or two great ones, and a few good ones. But the modal student cannot write a good paragraph, much less sustain analysis over several pages. I blame the high schools and the colleges. Surely it’s not too much to expect that the possessors of BA’s, and good to excellent grades, from excellent to good colleges, should be able to write? But again and again my hopes are, modally, dashed.

I’ve experimented with exam form. For upper-class courses, I tend strongly to open book exams, and sometimes a take-home. Life, after all, is usually open book, and is often a take-home. This makes exam-writing a lot tougher of course, because you have to test understanding not just memorization. A good test has to have questions that are not too tricky, and yet not blindly obvious. In a fast-moving area of the law, this can be a hard zone to find, especially if you know the subject well, since there’s always a danger of assuming students will know something that seems obvious to an expert but may seem baffling to a relative beginner. And for Administrative law, which I’ve taught many times, there’s the constant struggle to avoid writing questions that end up sounding too much like last year’s.

In the age of Google, Westlaw, an open-book take-home is a special challenge, as I need to write something with sufficiently idiosyncratic facts that the answer is not ‘out there’ somewhere—and I have to check for that, which takes time.

For first year classes we have a mandatory curve, which is fair given that we teach multiple parallel sections of the same classes, and students have no ability to select among them. Years ago, we also put our adjuncts on a curve for upper-class courses, because some of them were giving all A’s — whether due to sympathy for versions of their former selves, to inflate their enrollments, to avoid the trouble of actually reading exams, or to boost their student evaluations (which lead to rehiring), I have no idea.

Full-time staff don’t have to grade upper class courses to a curve, and I do not. I grade to my idea of an absolute standard, perhaps modified down a little bit to accomodate reality. My dream is to have a class do so well that they all deserve A’s, which I joyfully give them. Nevertheless, most years I get a normal distribution around a B or C+, or a double humped curve around a C and a B+. (We have no B- grade, for no discernable reason).

Taking exams is the pits. Writing them is almost as bad as taking them. Grading them is worse, because it takes much longer, is much duller, and contains infinite possibilities for self-reproach (‘how could I have said something that would make them think that????’). I am the world’s slowest grader. Being married to a grading machine only makes it worse.

FTAA 3rd Draft Leaves ICANN/UDRP Provisions Unchanged, Unagreed, and Probably Optional

The third draft of the FTAA is now online. The Revised Intellectual Property Chapter, FTAA - ALCA - ZLEA - FTAA Draft Agreement - 2003 - Chapter XX, is still crawling with brackets (meaning there is no agreement), and Art. 13, which I criticized recently, is unchanged — but now it seems the whole chapter may be optional!

Not Geniuses has links to summaries of the overall course of the negotiations. It seems to have gone in the direction of ‘FTAA a la carte’ — and the IP provisions appear to be among the optional ones.

Of course this means the US will step up its pressure to put IP rules into bilateral trade agreements, but overall this is still progress.

Cat in The Hat, The Movie, Falls Flat

The film does not shine
It’s a ripoff, they say
Which we knew in advance
From the adverts they play

Anyone who mistreats a children’s classic deserves what they get. The Cat in the Hat was one of my favorite books when I was little, and I enjoyed reading it (over and over) to my kids when they were little.

The reviews of the new Cat in the Hat movie are scathing, and I’m not at all surprised: When I was in New York last week, I saw an advert on TV for some product in which the movie version of the Cat in the Hat explained to two stock children (‘Gee Cat, thanks”) why they should use this cleaning product instead of others — Cat in the Hat, big spot on wall, get it? Ick.

Stands to reason that anyone who would prostitute a children’s icon like that lacked the sympathy with the material to make a good movie. Let’s hope they go broke.

Update: The marketing is much worse than I ever suspected.

Is "Is the Blogosphere Sexist?" The Right Question?

David Pollard (who has a wonderful, wonderful Blog called How To Save the World asks, Is the Blogosphere Sexist?. I think it’s a fine essay, but I wonder if it’s the right question.

First, I’d like to know, ‘Compared to What’? I teach on a faculty that has far fewer women then men, so I’m prepared to believe there is a fair amount of sexism remaining in society. (On the other hand, we have had three female Deans in our fairly short history, including one whose ghost all but still walks the halls, so it’s not all bad news here.) So the question may not be “are blogs sexist” but rather “to what extent to do blogs replicate or transcend existing patterns of behavior”.

Obviously, it would be great if we could show the flowering of public discourse to be a Habermasian public sphere operating without coercion or prejudice. But that is not very likely. I’d settle gladly for the news that the online exchanges are relatively less sexist and relatively less irrational.

No one in his right mind thinks that blogging, or the Internet in general, is free of strategic behavior (like, for example, frivolous threats of lawsuits). It stands to reason that when we “go online” (actually write stuff for public consumption), we are more or less ourselves. But it’s also conceivable that, as group norms evolve online, and as communities of discourse form and re-form and cross-pollinate, we can grow and change, and collectively become more than what we were.

Here’s hoping.

Alcee Hastings Won't Run For Senate

Hastings Decides Against Fla. Senate Bid. Well, although he had a shot at the nomination, he had no real chance to be elected. Which is sort of a shame, as he is a very impressive human when seen up close.

I guess this partly explains the mystery of Hastings’s endorsement of Lieberman — Hastings didn’t care about the tactical implications for a Senate race because he wasn’t making one.

Notes From FTAA Fontlines

FTAA IMC. It looks from this page as if the police in Miami are on a hair trigger — which fits with everything we’ve been reading in the local press for the last couple of weeks. It would be tempting to dismiss this web page as agitprop — and it may be — but certainly the cops came armed for bear.

The mainstream media reports, Thousands march peacefully after early clashes. It starts off with how great things are, but the further you go into the article, the less great they sound — although so far at least there have been no major incidents, just many minor ones.

Even the boosterish Herald reports,

Among those arrested today: Marc Steier, an attorney with Miami Activist Defense, which defends the rights of protesters. He said he was seized by police early this morning and charged with obstruction of justice as he attempted to assist protesters.

”I didn’t last 25 minutes on the street,” he said.

And this doesn’t sound fair:

Organizers said the route and the protester turnout was limited because of police actions. At the last minute, they said, police deleted a few blocks from the southernmost section of the route — the blocks that would have brought marchers relatively close to the Inter-Continental.

Platoons of officers appeared seemingly everywhere in the heart of downtown Miami. Many officers were dressed in riot gear and carried batons and plastic shields. Many police and media helicopters hovered overhead.

People I spoke to yesterday, late-middle aged academics trying to get to a hotel, near the FTAA meeting described a downtown under virtual lockdown with tanks on the street and an oppressive police presence.

Judging from the Herald, however, it may ‘just’ have been an armored Humvee…

But many participants complained about what they called police intimidation and heavy-handed tactics.

”I think I’m in a third world country …,” said Sam Lender, 82, of Delray Beach. “When we got off the bus at Flagler we saw a tank and guys with gas masks and riot gear. Where’s the protection against terrorism? Are we the terrorists?”

The ”tank” was an armored Humvee vehicle on loan from Broward County.

Money Map: A Great Way to Display Information

This is a simply wonderful way to display one type of information: a map of the US showing where candidates are getting their money. (Via Joho The Blog.)

More Arar

Here’s some general information relating to the Arar case, including a timeline and a discussion of one of the relevant limits on the use of torture. The last two links suggest that it was the Canadians who fingered Arar to the US authorities, although whether they did so a routine matter or in the hopes that the US would do Canada’s dirty work is not addressed. The Canadians do say that they never expected Arar to be sent to Syria, and didn’t get advance warning of the transfer, although if that was the point of the exercise why would they?

• Canadian Broadcasting Company (CBC) Arar timeline
• Wikipedia Entry
• Lawyers Committee Urges Investigation Into US Actions in Syrian Torture Case (Nov. 7, 2003), which says,

  Article 3 of the Convention on Torture, to which the United States is a party, states:

  No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture…. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

  U.S. treaty obligations and policy have been implemented through regulations issued by the Department of Justice, the Department of Homeland Security, and the State Department, that codify the United States’ commitment not to send individuals to another country where they are likely to be tortured. Among other protections, these binding regulations require that individuals facing deportation or extradition be given an opportunity to be heard on the likelihood of torture in the country to which they are facing return. The Arar case suggests that either those procedures are not being followed, or that they are inadequate.

• Ottawa asks U.S. for explanation of Arar case, but turns down public inquiry (Nov. 5, 2003)
• Joseph Reagle, You Might Know a Terrorist, and Pay For It
• Amnesty Canada
• Canada supplied information used against Arar, says solicitor general (Nov. 19, 2003)
  

Guardian: Richard Perle Admits Iraq Invasion Was Illegal Under International Law

War critics astonished as US hawk admits invasion was illegal

International lawyers and anti-war campaigners reacted with astonishment yesterday after the influential Pentagon hawk Richard Perle conceded that the invasion of Iraq had been illegal.

In a startling break with the official White House and Downing Street lines, Mr Perle told an audience in London: “I think in this case international law stood in the way of doing the right thing.”

President George Bush has consistently argued that the war was legal either because of existing UN security council resolutions on Iraq - also the British government’s publicly stated view - or as an act of self-defence permitted by international law.

But Mr Perle, a key member of the defence policy board, which advises the US defence secretary, Donald Rumsfeld, said that “international law … would have required us to leave Saddam Hussein alone”, and this would have been morally unacceptable.

French intransigence, he added, meant there had been “no practical mechanism consistent with the rules of the UN for dealing with Saddam Hussein”…

This ‘the ends justified the means’ argument is internally consistent, but it’s weird in the extreme to have all the former critics of humanitarian intervention reborn as bleeding hearts. Or would be if we believed they meant a word of the humanitarian stuff (postwar planning? us?)….

Maher Arar Affair: What is the Pluperfect of 'Cynic'?

The Maher Arar case is very disturbing, although the callous cynicism of Team Bush that it appears to reveal can hardly be a surprise at this point.

The key allegations are:

• Arar, a dual Syrian-Canadian national, was transiting through a US airport on his way to Canada when he was stopped by US officials who believed him to be a terrorist, or in cahoots with terrorists.
• The US government held him virtually incommunicado for days. Then it let him meet the Canadian consul — once. And a lawyer — once, for thirty minutes.
• At some point before or after those meetings, one or more hearings relating to where Arar would be sent were held without giving Arar or his lawyer notice or an opportunity to be heard.
• Acting AG Larry Thompson sent Arar to Syria, over his expressed desire to be sent to Canada, in circumstances where Thompson knew or should have known that Arar would be tortured.
• And Arar was tortured by Syrian intelligence for more than ten months.

In short, the claim is that the US arranged for Arar to be tortured via an extraordinary rendition. Presumably because the Ba’athist Syrian intelligence has been very cooperative in the war on (religious) terror.

But you see, that claim is really very unfair. The US didn’t arrange for the Syrians to torture anyone. No, no, a thousand times no. In fact, the US got the Syrians to promise that they wouldn’t torture Arar. And the Justice Department not only believed those assurances then, they believe them today! The Syrians would never torture a suspected al Queda member when they had promised us they wouldn’t. Or, at least, it was certainly reasonable of the good, honest, acting Attorney General to rely on the Syrians’ assurances, for we well know that they are a nation firmly committed to the Rule of Law.

According to the Washington Post, the US government position is that (1) Arar deserved it (“when apprehended at the airport, Arar had the names of ‘a large number of known al Qaeda operatives, affiliates or associates’ in his wallet or pockets.”) and (2) “the removal of Mr. Arar was accomplished after interagency consultation and in full compliance with the law and with all relevant international treaties and conventions.” Among which are several prohibitions on torture. And then, of course, (3) this jem, from another article in the Washington Post,

U.S. officials said yesterday that they decided to send a Syrian-born Canadian citizen to Syria last year only after the CIA received assurances from Syria that it would not torture the man.

Maher Arar, recently freed from prison, said he pleaded with U.S. authorities not to send him to Syria precisely because he believed he would be tortured. Arar has said he was tortured with cables and electrical cords during his 10-month imprisonment.

U.S. law strictly prohibits sending people — even on national security grounds — to a country where it is likely they will be tortured. Yesterday, a Justice Department spokesman confirmed that the Syrian assurances allowed them to legally send Arar to Syria.

Syrian has said it did not torture Arar. “We welcome statements by the Syrian Embassy, as it is fully consistent with the assurances the U.S. government received prior to his removal” from the United States, the Justice Department spokesman said.

In a Nov. 7 speech, President Bush said Syria has left its people “a legacy of torture, oppression, misery and ruin.” Spokesmen at the Justice Department and the CIA declined to comment on why they believed the Syrian assurances to be credible.

There are a lot of people writing about this: Brad DeLong, Unfogged, Chun the unavoidable, the world press.

Add it to the list: Iraq, Padilla, Hamdi, Mohamed K. Bellahouel, Guantanamo…

Domain Names and the FTAA: A Bad Mix

[HTMLized version of document presented to today’s conference on Negotiating Intellectual Property Provisions in Free Trade Agreements]

FTAA

Intellectual Property Rights Chapter, Part II, Section 1
Article 13 — Domain names on the Internet

[13.1. Each Party shall participate in the Government Advisory Committee (GAC) of the Internet Corporation for Assigned Names and Numbers (ICANN) to promote appropriate country code Top Level Domain (ccTLD) administration and delegation practices and appropriate contractual relationships for the administration of the ccTLDs in the Hemisphere. Each Party shall have its domestic Network Information Centers (NICs) participate in the ICANN Uniform Dispute Resolution Procedure (UDRP) to address the problem of cyber-piracy of trademarks.]

[13.1. Each Party shall make efforts, to the extent possible, to promote an adequate administration of domain names.]

Summary

The first paragraph is highly objectionable. The second is acceptable, although it is vague.

Nations should not be required to impose the ICANN Uniform Dispute Resolution Procedure (UDRP) by law on their citizens because:

• Governments should not be subordinate to the decisions of a private corporation, ICANN;
• Nor should the legal rights of citizens be decided by a private corporation;
• The UDRP is subject to change, and governments should remain free to opt-out if its provisions become unacceptable;
• As it stands, the UDRP fails to guarantee basic due process to consumers;
• Serious questions have been raised about the even-handedness of some of the arbitration service providers who supply the arbitrators for the UDRP.

Governments that have thought most carefully about what rules should be imposed on their ccTLDs and their registrants have imposed their own arbitration systems which, while modeled after the UDRP, use home-grown rules that more closely track local law, customs, and commercial expectations. Canada is the leading example of this. This choice should not be over-ridden by the FTAA.

The term “Network Information Centers (NICs)” used in the first version of Art. 13.1 is poorly chosen because it refers to an entity concerned with the allocation of Internet Protocol numbers, rather than bodies such as registrars and registries that actually allocate Domain Names.

Requiring nations to participate in the ICANN Government Advisory Committee commits them to use resources attending far-flung meetings in expensive venues all over the globe, meetings which may not bring much in return. The GAC is in any event a secretive and undemocratic organization, so it is not obvious that governments would necessarily see their participation as warranted. The appropriate level of participation in the GAC should be left up to individual governments to decide for themselves.

In contrast, the second paragraph in the proposed text of Article 13 is acceptable. Although unobjectionable as written, its very lack of clarity — what is “an adequate administration of domain names”? — is slightly troubling, and perhaps invites future mischief.

Analysis & Explanation

Background

Domain names are the alphanumeric text strings to the right of an “@” symbol in an e-mail address, or immediately following the two slashes in a World Wide Web address. Thanks to a massively distributed hierarchical system for resolving domain names to IP numbers, the DNS, Internet software can rapidly and invisibly convert a domain name to its unique Internet Protocol (“IP”) number, the number used to route data correctly.

There are many “top level domain names” (TLDs), including .com and also 244 “country-code top-level domains” (ccTLDs), all of which are two-letter codes, and most of which use the two letters associated by ISO Standard 3166 to refer to a country. Thus, Canada’s ccTLD is .ca, and Columbia’s is .co. These ccTLDs are managed either by national governments, or by private citizens domiciled in the relevant nation, ensuring that the government has regulatory authority over the ccTLD.

Traditionally, second level domain names, such as “example” in example.ca, have been allocated on a first come, first serve basis. Every ccTLD has its own rules; some impose limits on who can register what, but others do not. This sometimes results in unhappy trademark and service mark owners, late to the Internet, discovering that “their” name is already registered by another. In some cases the earlier user is a legitimate business from a different sector, or is a non-commercial user who cannot be considered an infringer. But in other cases, the first registrant is either a standard trademark infringer, or a so-called “cybersquatter” — a person who in the business of registering domain names in the hope of reselling them to owners of identical marks, and who counts on the high cost of litigation, or its slow pace, to negotiate a windfall.

The Internet Corporation for Assigned Names and Numbers (ICANN) is a California non-profit corporation that manages the Domain Name System under contract to the U.S. Department of Commerce. It has an international board of directors, and an unusual structure that includes a “Government Advisory Committee” (GAC) which, despite its name, participates in the selection of ICANN directors and has a right of consultation on key policy issues.

ICANN imposes a mandatory arbitration clause on registrants to .com and other “global” TLDs (gTLDs) that are not linked to anparticular country. The clause can be invoked by anyone, anywhere, who thinks that his trade or service mark is infringed by a second-level domain name registered in a gTLD. The UDRP is popular with mark holders, who find it quick and relatively cheap. It has been criticized by the majority of academics who have studied it for lacking procedural due process, having structural biases, and for failing to give due consideration to the expressive rights of non-commercial users seeking to criticize corporations by hosting web sites with derogatory domain names (e.g. “companysucks.com”).

Analysis of First Paragraph of Art. 13

The major problem with the first paragraph of proposed Art. 13 is that it forces signatories to impose ICANN’s UDRP on the users of their ccTLDs, who will primarily be their own citizens (ICANN already imposes the UDRP on all registrants in gTLDs such as .com, and no FTAA action is required to maintain the status quo in this regard). Participation in ICANN’s UDRP for every ccTLD should not be required by treaty because ICANN is a private corporation. International law should not make governments subordinate to a private corporation. Nor, if the national ccTLD is private, should a government be required by international law to subordinate its nationals to decisions made by a foreign corporation.

Indeed, some of the governments that have thought most carefully about this question, such as Canada for example, have adopted their own domain name arbitration systems for their ccTLDs. While modeled after the UDRP, these use home-grown rules that more closely track local law, customs, and commercial expectations. Canada’s system is notably fairer procedurally than ICANN’s.

ICANN can change the UDRP at any time. Indeed, discussions are currently under way to expand the reach of the UDRP. Even if one is satisfied with the UDRP at present, states should not allow themselves to be locked into a system that might change in ways they find objectionable. And, there are reasons to think the UDRP is not ideal:

As it stands, the UDRP has a large number of obscure but significant procedural defects. Because of these, the system fails to guarantee basic due process to consumers who register domain names.

In addition, serious questions have been raised about the even-handedness of some of the arbitration service providers who supply the arbitrators for the UDRP; as currently written, the UDRP creates economic incentives for arbitration providers to be “plaintiff-friendly,” and to discriminate subtly against consumers. Service providers’ are nor required to disclose their methods of recruiting and assigning arbitrators, and the system permits provider manipulation of panelist selection to achieve a desired result in a given type of case.

Currently, the UDRP rules do not [corrected] require actual notice to the defendant, nor do they require sufficient efforts reasonably calculated to achieve actual notice, especially in countries with inferior postal systems. The time limits to respond are very short, and put ordinary people who do not have an internet-savvy trademark lawyer on permanent retainer at a substantial disadvantage. Although the UDRP purports to have word limits, these are routinely circumvented by the use of “attachments” further adding to the burden faced by parties needing to prepare their responses in a short time.

A final note on the first paragraph: The term “Network Information Centers (NICs)” used in the first version of Art. 13.1 is poorly chosen because this term usually refers to an entity concerned with the allocation of Internet Protocol numbers, rather than to the bodies such as registrars and registries that actually allocate Domain Names. The confusion could be damaging as to date the two regimes have intentionally been kept separate, and indeed are subject to very different governance mechanisms. Internet Protocol numbers are controlled outside the ordinary ICANN process via regional bodies ⁽¹⁾ and by the Internet Assigned Numbers Authority (IANA), which is technically a separate function from ICANN’s management of domain names.

Analysis of Second Paragraph of Art. 13

As noted above, the primary problem with the second paragraph in the proposed text of Article 13 is that it is vague. It is not clear what constitutes “an adequate administration of domain names”, which perhaps invites future mischief. Since the duty to act is qualified by “to the extent possible” this provision does not appear too troublesome.

For further Information

     On ICANN

• Milton Mueller, Ruling the Root (MIT, 2002)
  
• A.Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), available online http://www.law.miami.edu/~froomkin/articles/icann.pdf
• A.Michael Froomkin & Mark Lemley, ICANN and Anti-Trust, 2003 Illinois L. Rev. 1, available online http://personal.law.miami.edu/~froomkin/articles/icann-antitrust.pdf.
• ICANNWatch.org, http://www.icannwatch.org

On the UDRP

• A.Michael Froomkin, ICANN’s “Uniform Dispute Resolution Policy” — Causes and (Partial) Cures, 67 Brooklyn Law Review 605 (2002), available online http://personal.law.miami.edu/~froomkin/articles/udrp.pdf
• Elizabeth G. Thornburg, Going Private: Technology, Due Process, and Internet Dispute Resolution, 34 U.C. Davis L. Rev. 151 (2000);
• Michael Geist, Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP, http://aix1.uottawa.ca/~geist/geistudrp.pdf (Aug. 2001);
• Milton Mueller, Rough Justice: A statistical assessment of ICANN’s Uniform Dispute Resolution Policy, http://dcc.syr.edu/roughjustice.htm

  
  

1. These are APNIC (Asia Pacific Network Information Centre) - Asia/Pacific Region, ARIN (American Registry for Internet Numbers) - North America and Sub-Sahara Africa, LACNIC (Regional Latin-American and Caribbean IP Address Registry) - Latin America and some Caribbean Islands, RIPE NCC (Réseaux IP Européens) - Europe, the Middle East, Central Asia, and African countries located north of the equator, and soon to be joined by AfriNIC (African RIR, proposed).

How School Vouchers (Don't) Work In Florida

As Congressional Republicans plan to violate Washington DC’s home rule, and force a school voucher system on the city, I think it’s useful to review how vouchers are working here in Florida.

I’ll support almost anything reasonably calculated to improve the access of poor people — and rich people too! — to quality schooling for kids. Abstractly, vouchers look like they might do that, subject to a small host of caveats about the effect on kids with serious problems who might end up being treated like the ‘lemons’ of a primarily for-profit system, or dumped into the vestigial remains of an underfunded public system.

Given the Florida experience, however, one has to ask whether vouchers in practice are in fact reasonably calculated to be helpful on balance. As usual, the Florida Blog is on top of this one, with links to:

• Nonpublic schools wrote own ticket on form
• Come fall, the heat is off: The state’s much-touted sworn affidavits are making school vouchers look increasingly like blank checks.
• Avoid state meddling: Start a schooll
• Bush aides considered fabricating voucher explanations
• Cooking up a coverup
• Education commissioner concedes voucher failings

Talk about waste, fraud and abuse! Not to mention special interest lobbying, hogs at the trough, and every other cliche too.

Compare and Contrast

In one corner, William Safire, being tactical. In the other corner Joshua Marshall being reasonable. (And, in the background, the Defence Dept. disowning the report Safire is relying on.) You gotta wonder about prundits when they rely on stuff that’s already been disowned and refuted. Or just turn to your Daily Howler for a very jaundiced view of the pundit class.

The Safire article is a list of those who he thinks should confess error. Among them,

Former spooks who convinced reporters that there was never any connection between Saddam’s Iraqi regime and Osama bin Laden’s terror network would forthrightly assert they were uninformed about the decade-long links that were revealed in the classified memo the Senate Intelligence Committee requested from Under Secretary of Defense Douglas Feith. (The secret memo detailing 50 instances has gone relatively uncovered by major media because it surfaced in the current Weekly Standard, but is the subject of an automatic leak investigation — yet another time-wasting mistake.)

It’s an especially strange comment to make since the Dept. of Defense — no stranger to the neo-con world view, basically disowned the memo’s conclusions, saying “News reports that the Defense Department recently confirmed new information with respect to contacts between al Qaeda and Iraq in a letter to the Senate Intelligence Committee are inaccurate.”

Joshua Marshall has already been there, weighed it, and found it wanting

…is it “case closed”? Not quite. More like, case restated.

What do we already know about the intelligence wars over the Iraq-al Qaida link?

We know that most of the Intelligence Community didn’t think there was much there. Some contacts, but nothing substantial. We also know that Doug Feith — along with other administration appointees — didn’t agree. And Feith set up his own intelligence shop at the Pentagon to review all the raw data and find what the CIA and others had missed, misinterpreted or buried.

They came up with a raft of purported connections between Saddam and al Qaida. But when they presented their findings to professional analysts in the rest of the Intelligence Community, most notably at the CIA, the consensus was that those findings didn’t pass the laugh-test.

And who put together this new memo, the one the Standard article is based on? “The U.S. Government,” as the headline of the article says?

Not exactly. …. This memo is what Doug Feith sent them representing their side of the story. With the exception of some tidbits from interviews with Iraqis now in custody, this is, to all appearances, the same bill of particulars that Feith’s shop put together in 2002 and which was panned by the analysts in the rest of the Intel community.

So, the first point to make is that there seems to be little if anything here that the folks in the rest of the Intel Community — outside of Special Plans — did not see before concluding that there were no significant links between Iraq and al Qaida.

Point two is that Feith’s shop, the Office of Special Plans, the original source of this memo, gained an apparently richly-deserved reputation for what intel analysts call cherry-picking. That is, culling raw intel data to find all the information that supports the conclusion you want to find and then ignoring all the rest.

Now, of course, Feith’s advocates say that everyone else was just doing their own sort of cherry-picking, picking the evidence that supported their preconceived notions, etc. But this is simply another example of a pattern which we see widely in this administration: the inability to recognize that there is such a thing as expertise which is anything more than a cover for ideological predilection (for more on this, see this article.)

More to the point, there’s now a record. These are the folks, remember, who had the most outlandish reads on the extent of Iraq’s WMD capacities and the most roseate predictions about the ease of the post-war reconstruction. So their record of interpreting raw intelligence is, shall we say, objectively poor.

Spot the dinosaur.

Alcee Hastings Picks a Presidential Candidate: Lieberman

I didn’t see this one coming. Lieberman to pick up endorsement of Florida Rep. Hastings

I have no idea how much of this is tactical, and how much is something else like personal friendship. Alcee Hastings is running for Senate in Florida. In a crowded field he’d have a shot at the nomination, but how endorsing Lieberman helps him get that nomination I fail to see. Peter Deutsch will probably get most of the Jewish vote. And the odds of anyone being fooled into thinking Rep. Hastings is a conservative Democrat are pretty low, although he’s less predictable and more interesting than most Representatives. I suppose there’s some reason to think Lieberman will run strong in Florida, if his campaign has any juice left by the time we have our primary.

It could well be that Hastings just likes Lieberman for some reason. But it’s hard to see what that reason could be other than something personal. Lieberman is my least favorite of the major Democratic candiates because of his disgraceful reaction to the courageous decision by Illinois Governor George Ryan to commute the sentences of 167 death row prisoners

“Governor Ryan’s action was shockingly wrong,” Mr. Lieberman said … “It did terrible damage to the credibility of our system of justice, and particularly for the victims. It was obviously not a case-by-case review, and that’s what our system is all about.”

Sorry, that decision of Governor Ryan’s was shockingly right.

Here’s Alcee Hastings’s political mapping (vintage 2000):



Here’s Joe Lieberman’s position on the same map:



Hmmm. Less distance than I’d have expected.

Update on Digby Jones Quote

I’ve had an emailed reply from the efficient, and no doubt quite busy, CBI press office to my query asking for confirmation that Director General Digby Jones had said what the Evening Standard quoted. In my query I asked for the text of Digby Jones’s speech. Here’s the reply:

There is no speech this came from an interview with the Evening Standard - Digby Jones is speaking today though, at 12.30

The speech and press release will be on the website later.

And it is, but it’s about the EU.

Second Data Point on Theft of Democratic Memos

Last week it seems that Republicans managed to purloin a Democratic memo relating to the Senate Intelligence committee — either from a computer or a trash can. At the same time, someone was stealing Democratic memos relating to the Senate Judiciary committee: Apparent Theft Of Democratic Memos Probed (washingtonpost.com).

Republican hacker at large?

Are They That Stupid? Someone Is, And It's Bad News

Brad DeLong expresses doubt as to whether (as I noted earlier that the Evening Standard had reported) even the Bush administration could be quite dumb enough to be strong-arming US defense firms in hopes of getting them to close up shop abroad and bring jobs to the US:

I do not believe this. I cannot believe this. Incompetent, short-sighted, ungrateful, and mendacious as we all know the George W. Bush administration to be, even they wouldn’t do something as stupid and counterproductive as this.

Would they?

I understand Brad’s reluctance. Like him, I don’t want to think that our leaders can be that dumb. And the Evening Standard is not the gold standard for reporting.

Trouble is, it’s not that easy to figure out exactly whether the Director-General of the Confederation of British Industry Mr. Digby Jones actually said what was reported in the Evening Standard. The text of the speech doesn’t seem to be online. I’ve e-mailed the Confederation of British Industry in the hopes they will send it to me.

In the mean time, we have to make do with the newspapers. The usually reliable Financial Times more or less echoes the Evening Standard. A Scottish paper suggests this isn’t about private strong-arming so much as the “Buy America” campaign. And the Daily Telegraph says that the pressure came from Congresspeople — some of whom unquestionably are this stupid — and not from the White House. And, indeed, if you look at what the FT and ES actually say, they don’t finger the Bush administration as such — just give the strong impression the Administration is the source of the pressure from the context, which is about Bush’s visit.

But even if the pressure came from Bush’s allies in Congress, instead of directly from the administration, this isn’t good.

Start with the Financial Times, which is highly reliable. In Testing time for very special friends, the FT reports the various and growing US-UK tensions over Guantanamo and over economic relations, and then notes that,

there is deep suspicion in business circles these days of the extent to which the US is actually on the UK’s side, a suspicion accentuated by the imposition of hefty protectionist tariffs on European steel imports.

The suspicion was all too evident yesterday at the annual conference of the CBI, the employers’ body, where Digby Jones, director-general, made plain to delegates in Birmingham his concerns about the US.

“Three chief executives of American companies investing in Britain have told me to my face that they have been told to close down, bring their stuff home and make it in the US,” said Mr Jones. “Whether flouting international law with their steel tariffs or telling their companies to come home, this bullying affects Britain and British jobs. We are America’s biggest trading partner but if this escalates it hits us worst because we are such a big player in the world market.”

The Herald, a Scottish newspaper, suggests the context for the quoted remark is the US’s ‘Buy America’ campaign. (Update: As far as I know, while there are existing “Buy American” laws on the books, the attempt to toughen them in the 2004 Defense Authorization Act did not succeed. )

That’s also the Daily Telegraph’s line, with the added bit that the pressure came from Congress rather than the White House:

Mr Jones also said he knew of two US companies - one defence rated and one manufacturer - which were being pressured by US congressmen to move their UK operations to America.

He added that a third company from the defence sector had told him that one of its American clients had been told by the US Government to buy its goods from an American rival and it would refund the difference.

Mr Jones said he had urged Mr Blair to raise the “buy America” campaign with Mr Bush. He said: “This goes to jobs of ordinary skilled people in Britain. This will cause unemployment in Britain and this is from our best friend.”

So there seem to be two versions of this story, one awful, one just bad.

If the administration is behind this pressure, it’s awful. But even if it’s just Republican congressmen, it’s bad. For whether this pressure comes directly from Bush or just from his domestic political allies who he apparently cannot control, just think about the message this story sends the world: If there is one government that supported Bush and gave him essential political cover over Iraq, it was Tony Blair’s Britain. And this is what they get in return?

Imagine the effect on countries trying to decide whether to cooperate with us in the future.

Robert Kagan Explains Why Dean Is No McGovern

No George McGovern (washingtonpost.com). Robert Kagan can read, and he’s no prisoner of anyone’s dogma but his own. So he doesn’t accept the Republican spin points about Howard Dean.

On the contrary, he sees what I see: Howard Dean is no peacenick at all — he’s squarely inside the somewhat militaristic consensus of the center-right foreign policy establishment. Dean just thought the Iraq war was unwise and unnecessary — and was able to say so because he had nothing to lose. (I suspect many others thought the same thing at the time but had more to lose and kept quiet.)

Kagan delivers a few jabs, but they are above the belt. The first is that Dean will disappoint the most dovish Democrats.

That’s true, and it could hurt Dean in the primaries (but probably won’t as campaign cognitive dissonance is setting in among his supporters), although it makes Dean more electable in the long run. As Kagan puts it, “The Bushies are planning to run against a dovish McGovern, but there’s a remote possibility they could find themselves running against a hawkish Kennedy.”

The second jab is that “the rest of the world should note well … that the general course of American foreign policy is fairly stable and won’t be soon toppled — not even by Howard Dean.” That’s true — but only if you count Bush and the maniacally unilateralist Velociraptors at the Defense Department as outside the US foreign policy consensus. Any democrat running will return to the pre-Bush vision that our alliances are worth maintaining, the UN has a place in the world, and not every treaty (other than anti-democratic trade deals) is a mugging.

British Political In-Jokes About Bush Visit

If, like me, you pay some attention to British politics you will probably find this spoof memo about Bush’s state visit to the UK to be pretty funny: Telegraph | Opinion | Palace-speak for the Bush men

If the name “John Prescott” means nothing to you, it’s still funny, but you’ll probably miss some of the best jokes.

Bush Employment Plan Revealed: Start a Trade War

US firms told ‘take UK jobs home’: Turns out that the Bush folks do have a plan to increase US employment, one whose stupidity boggles the mind: blackmail defense contractors into closing plants in allied countries and repatriating the jobs. The idiocy of this thuggish idea exceeds even that of the incredibly stupid and obviously illegal steel tariff.

Ok, the Evening Standard is not the New York Times, but it is London’s major evening paper, and it’s hard to believe they would get this wrong:

US-based multinationals have been told they will receive compensation from American trade authorities if they cancel contracts in Britain and take jobs home, according to CBI director-general Digby Jones.

…

Speaking at the CBI’s annual conference in Birmingham, Jones said: ‘Three chief executives of American companies investing in Britain have told me to my face that they have been told to close down, bring their stuff home and make it in the US.’

He said the companies were major employers in defence or manufacturing.

Jones continued: ‘Whether flouting international law with their steel tariffs or telling their companies to come home, this bullying affects Britain and British jobs.

(Spotted by the sideshow.)

Well, that ought to make for fun discussions with Tony Blair, don’t you think? And for a good show at the next Question Time…

That Trademarked Baby

US babies get global brand names. As more and more ordinary words become national and international brands, some overlap between personal name space and TM-space was inevitable. But naming kids “ESPN”? I think naming a child after a brand is a pretty awful thing to do — but that doesn’t make it illegal.

I haven’t researched it, but it seems to me that were any owner of even a coined famous mark (the very, very strongest kind) to complain about a child bearing their trademarked name, the company would lose. Mere naming of a child is a non-commercial use of a word, and federal trademark law, at least, requires commercial use of a term for both traditional infringement and for federal dilution claims. Furthermore, the naming is neither dilution nor tarnishment (although it could lead to either in the long run).

The more interesting legal issues arise if the kid ever tries to use his name in commerce. Even people named McDonalds can’t open eponymous burger joints today. So the kid might have more constraints on the use of his name than the rest of us.

Drawing the line isn’t easy, since dilution law is fairly hair-trigger, and doesn’t require even an imminent likelihood of confusion, must less evidence of actual confusion. Nor does it require that the two sets of goods be in competition — just that the new user be thought to “blur” the uniqueness of the prior user’s famous mark.

Now suppose the kid with the funny name grows up and becomes a major recording artist, uses his own name, and sings songs that the famous, coined, mark holder thinks blur or tarnish the brand…. The mark holder would certainly have an arguable case that the former kid should call his act something else.

I think the former kid should win, but it’s a comment on the state of the law that this isn’t as obvious a result as it might be, especially if the dilution claim was based on one of the more aggressive state’s laws.

(If thousands of people name their kid after a trademark, is it at risk of becoming generic? Only for kids, not for the class(es) of goods on which the mark is used in commerce.)

On a marginally related note: McDonalds complained about “McJob” being in a dictionary (although the word is apparently there to stay).

Meanwhile, here’s my policy on T-shirts and other goods with prominent logos: If you want me to wear your logo (I.e. advertise your brand) you have to pay me. It may not cost much, though: Give me a free t-shirt, and I may wear it if it’s nice….

I usually also avoid clothing with even small, externally visible logos, but I’m not fanatical about it, especially when it comes to blue jeans and sneakers (since they all seem to have them).

Student Teaching Evaluations

Last week the Dean of Students office took ten minutes out of each of my two classes to administer our student evaluation forms. In principle this is a good thing. In practice, the verdict is much less clear, an uncertainty exacerbated by reading Michael Huemer and Mary Gray and Barbara R. Bergmann (references via the Invisible Adjunct).

Ideally, students would evaluate a class after they had all of it, including the exam. That’s especially significant in a course like Administrative Law which, for many students, only starts to make sense when they review and find that all the pieces actually do form a coherent whole. And for every class, whether the exam is fair or not seems like it ought to be an issue for students to discuss — and which should be of particular interest to students thinking of taking the course in the future.

My suggestion a few years ago that students be asked to fill out the class evaluation form immediately after taking the exam met with near-universal derision. Some faculty feared that students who thought they had done badly on the exam might be in a vengeful mood; others thought that students would just be too exhausted at the end of an exam and wouldn’t bother. The suggestion that if the response rate was too low (it’s currently only about 2/3) we could then require that it be turned in before students could get their grades was rejected as too complex administratively.

It doesn’t help matters that we have one of the most poorly designed course evaluation forms I’ve ever seen. The story round the faculty is that this an intentional feature. Supposedly the faculty committee that drafted this (before I turned up) wanted to make a form that revealed as little useful information as possible in order to discourage Deans from using the students’ feedback as an input to salary determinations.

Subsequent Deans, however, have made it clear to us that they read these forms, and that they are important inputs to their decisions on whether our salaries keep pace with, or on occasion, make up lost ground to, inflation.

I used to get really rotten evaluations. For the past few years I’ve gotten superb evaluations. It’s possible I’ve become a much better teacher, although to be honest I sort of doubt it. As far as I can tell, and I admit that I’m not inevitably the best judge, I’m doing pretty much the same things I was doing by my third year in teaching. I do think I made a lot of mistakes in the first two years, mostly assigning and expecting too much, but since then I think I’ve been in a steady state.

What’s changed, I think are these things:

1. I’ve been around long enough that from the student perspective I’ve been there forever. There’s a tendency to beat up on new teachers (and especially women), and once you get out of the hazing period, things go better.
2. I teach more upper-level courses these days, so everyone who takes my course is coming to the nuisance. Word has gotten out that I assign a lot of reading and am fairly demanding, and students self-select. I get good students.
3. A few faculty members have been very kind in puffing my classes to students, and I get cited in some of the readings (or in some cases in the casebooks). I suspect that if the students think they are studying with a national authority, whatever the reality, they are more inclined to be forgiving.
4. Probably the most important change of the years, however, is that students are just generally in a better mood these days. The student body seems to have a more positive vibe than it did, say, five years ago (it also has substantially higher test scores), and a rising tide lifts all the boats.

Of course what I’d really like is constant feedback during the semester. But that would have to anonymous, I think, because most students simply cannot believe that the faculty would not hold negative comments against them. And, human nature being what it is, I’m sure that they’d be right about that in some cases at least.

How Not To Pick Up Women Online

Probably the funniest thing I’ve seen at the State of Play conference was watching a demo yesterday evening. I missed the beginning of it, but by the time I got there, Will Harvey, the Founder and CTO of there.com was logged into his virtual world with an avatar of himself (well, a somewhat more buff version of himself). He was walking around, tryng to get virtual dogs to heel, and chatting up female avatars.

The AI doggies liked the treats, but the avatars were not cooperating. There were people with dune buggies and hovering skateboards who were having fun running down pedestrians (you can’t die in there.com, but the victim flies artistically through the air, or suddenly finds itself face down through the dirt). I found it disorienting, but Will seemed to take it in stride. Will didn’t seem to mind being run over too much, but he got very cross about the person with the paint gun shooting puppies. It was entertaining to watch him pulling down menus, buying a paint gun of his own (probably helps to have an infinite supply of there bucks), and going after the evil-doer.

But most of the demo was spent trying to socialize. Will would strike up a nice conversation with female avatars, and at some point the other player (I’d write “women” but who really knows…) would ask him something about himself. He’d very modestly admit to being the designer of the game, and the conversation was suddenly over. It was clear that the other players didn’t believe him (running into a game designer on a balloon-ridden field in a Virtual World is the game equivalent of meeting Zeus in a coffee shop), and basically figured he was either a liar or a nut. Some of the other players were more polite than others, but all of them had reactions that amounted to “oh, sorry, gotta run.”

Conclusion: six years of development of VR is not the most efficient way to pick up women.

Abandon All Hope Ye Who Quote Here

It’s common for academics to bring early drafts to conferences, and to warn readers that the papers shouldn’t be quoted or cited, and that indeed the author may well change his mind. That said, this author’s note from Dan Hunter and Greg Lastowka on their paper Virtual Crimes is unusually robust:

Important Note: This is a very preliminary draft, reflecting certain unresolved and undisclosed disagreements between the two authors and subject to complete and unequivocal disclaimer by both. We warn you only once that Lord Nagafen WILL STRIKE YOU DEAD if you so much as think about citing this or using this as an account of what we think. Additionally, the authors expressly reserve the right to seek redress against any such offenders by the well-established common law procedures of torture, ordeal, and trial by combat

Virtual Worlds: A Dystopian Thought Intrudes

So I’m sitting here listening to people describing how they are building in all the ugliest features of existing intellectual property (IP) rights into various virtual worlds. The big advance the folks at There.com are touting is not that they’ve decided to use, or impose, a better set of rules but rather that they’ll allow player-designers to claim ownership for the virtual items they design. Of course, to enable and enforce a constellation of intellectual property rights, you need a means of tagging the IP rights status of every virtual item, so they’ve built-in a set of tags that go with every item that identify the IP rights assigned by the item’s creator.

The first obvious question, asked eloquently by Yale’s Yochai Benkler, is why on earth anyone would choose to reproduce (not to mention make more binding) all the most objectionable features of a near-pathological legal system? Why not try to build something that encourages sharing? I think part of the answer is that the colonizers of virtual spaces are doing what colonists usually do: bringing their intellectual baggage with them. Another part of the answer is that some of the designers see the tagging and enforcement of IP as part of their business model - it allows them to have and protect proprietary content, maybe to tax in-game transactions someday, and to have something to offer the owners of external IP rights who might otherwise get litigious. The designers’ answer was that they are enabling the Creative Commons licenses in addition to more traditional options, and that they expect most participants to pick those, so it will all/mostly come out alright in the end.

And then I had a Really Worrying Idea. The discourse here tends to discuss Virtual Worlds as either, 1) important new phenomena in themselves (socially or commercially); or 2) social spaces that may create new relationships that might spill over into the real world.

In the paper Caroline and I wrote, that I’ll be presenting later in the conference, we argue that there’s a third view, that the Virtual Worlds could be used as testbeds for legal rules. But what if our vision is too modest? What if the really significant vew is a fourth view, that the virtual worlds are (unintentional) testbeds for new technologies of tagging and control? After all, in real life people are testing and (secretly) deploying RFID systems that allow them to tag and trace consumer purchases. It’s only a matter of time before it’s technically feasible to track and trace everything we have.

So, now I have a dystopian vision to balance some of the enthusiasm here. Worryingly, I find it more plausible.

Random Notes on 'The State of Play'

I’m not going to blog the conference if only because I don’t type fast enough. And I gather some other people may do so. But I’ll try to post some notes now and then.

Learned: The State of Play conference is a sell-out. In addition to the academic crowd there are lot of people involved in designing the games, or in the constellation of ancillary industries that are springing up around the games (e.g. designing stuff for the avatars, and selling it; or doing things which rely on the games or the game engines, like making movies or staging online art shows).

Learned: The level on enthusiasm among massively multiplayer online game-makers and users is as high as anything you could have found in the early days of the dot-com bubble. “This is our Woodstock” one of them told me earnestly. And the level of idealism is almost as high: many of the people designing games see themselves as enabling self-expression and creating spaces in which new social linkages and new spontaneous forms of bottom-up social organization. But there’s more of the social linkages than social organization.

Learned: In virtual worlds, the aphorism “the clothes make the man” is a lot more true than in real life.

Re-Learned: Game designers worry a lot about not discouraging the customers. This imposes massive constraints on their ability to address resource and skill inflation. And that can hurt the gameplay….

Learned: From the game designer perspective, the player-killers have much more stamina than the folks who try to settle and build something. The barbarians just don’t mind getting killed, and come back again and again (indeed, the barbarians get highly organized, form guilds or factions, and attack and re-attack, until civilization is destroyed). Even when the people who have taken the time to build something and created a community around are able to organize to defend it, they don’t have the staying power: the experience of having to fight all the time to preserve your tavern or your art gallery is juts too wearing on the soul, and eventually they give up.

Re-Learned: The level of legal sophistication among the people who build and code things is basically random. Some of the people doing some of the cutest things are going to have very high legal bills Real Soon Now.

Learned: Some Virtual Worlds are drifting in the direction of being Virtual Malls. There’s probably money in that, but may co-exist uneasily with the idealists.

Travel Notes

There are things I learn from traveling, and things I re-learn.

Learned: MIA — never good at the best of times — has managed to get worse. In order to serve the herding needs of the security services, you now have to walk three times as far to get to low-numbered “C” gates … which is where the flights to NY leave from. It now feels even more like Laguardia at its worst.

Re-Learned: When we’re having lovely weather in Miami, the rest of the country, is having seriously crummy weather. Example: my flight to NY started its decent to JFK, only to abort rather suddenly. Seems the winds were gusting at 70 MPH, which is too much. So we got diverted to Baltimore to re-fuel before trying again.

Re-learned: NY streets are a lot cleaner than the NY of my childhood memories.

Learned: The conference hotel looks out onto the site of the World Trade Center. It’s even more depressing that I would have thought. It feels very odd to look down from the 52nd floor onto the small crowd milling about outside the fence.

Fools and Consistency

“A fooling consistency,” Oliver Wendell Holmes Ralph Waldo Emerson [this should teach me not to blog on the road, but probably won’t] famously wrote, “is the hobgoblin of little minds.” All too often abbreviated to leave out the first two words (which of course imply that much consistency is not at all foolish), the insight captures something deeply true and more than a little unsettling about the evolution of the common law. The common law does change to fit the times and to fit new circumstances. The price of this capacity to mutate is indeed some occasional illogic and some inconsistency with precedent. When things are going well, we at least manage to treat like cases alike for the moment, remaining fully conscious that our ideas of what is “like” and “different” are things we lawyers both construct and soak up from the legal and social cultures we inhabit. And we fight about which sorts of consistency are wise, and which are foolish.

I was thinking about Holmes’s Emerson’s aphorism this morning as I read the news about Washington and Iraq. It seems we need to reverse the aphorism to capture something more than a little true and deeply unsettling about the course of United States foreign policy. I don’t mean the Bush doctrine of US supremacy and unilateralism, which is certainly consistent and arguably foolish. Rather, I mean the Bush policy towards the occupation and reconstruction of Iraq. Having said loudly and often that the US must stay the course, not cut and run, etc. etc., the Administration now shows disturbing signs of what the Brits call ‘wobble’.

Item: The administration has already announced planned troop reductions at a time when violence is increasing, not decreasing.

Item: The administration has announced that Iraqi’s being recruited for policing duties will be given abbreviated training and rushed into service.

Item: Amidst reports that the hand-picked Iraqi Governing Council is corrupt, slow and dysfunctional, the administration has announced that it wishes to transfer responsibility to it more quickly than originally planned.

Item: The CIA reports the US is losing the hearts and minds of (a good chunk of) the Iraqi populace.

Item: Bush poll numbers are slipping at home, especially about the conduct of the war/’peace’.

We thus face the potential that the velociraptor tendency in the foreign policy establishment will take the inconsistent position of declaring victory and running, or at least running down the US/’coalition’ presence, while the opposition, and more liberal, strategists stick to the ‘we broke it, we bought it’ view that whatever the merits of the original intervention (if any), it would be wrong to create an anarchistic political vacuum.

The political problem this creates, of course, is that it sets up an election in which the Democrats can be portrayed, however subliminally, as wearing the millstone of wishing to perpetuate an unpopular occupation, while the Republicans claim they are the party of extrication and victory.

On the one hand, it’s amazing to even imagine that Bush could start a war, abandon it, and then blame Democrtats for opposing it (“McGovernitnes!”) and not supporting his means of ending it. On the other hand, the Dem’s willingness to be ‘tough’ on ‘winning the peace’ may just maybe serve to deflect the McGovernite aspersion.

And, of course, any such Bush strategy puts big hostages to fortune, for if things were to go really badly in Iraq, someone might notice, even after most troops are out and the casualties are down. In particular, a cut and run strategy would be especially vulnerable to a return of Saddam Hussein…which can only put more pressure on those special commando units that have been tasked with finding him.

I do not think that an unwillingness to cut and run is a foolish consistency. But it’s not obvious that even if Holmes’s Emerson’s aphorism speaks to the common law, in this day of sound-bite debate it has as much to say to national politics.

Off to (the State of) Play

Blogging may be light for the next few days, and will certainly be erratic, because I’m off to New York to attend the State of Play conference. There are a bunch of interesting papers online, so it looks like it should be a good event.

I’m mildly amazed at the speed with which the academy can take a social trend and turn it into something that generates scholarship worth reading. Yes, sociologists have been writing stuff about MUDs and MOOs for years, but — to be blunt — as far as I can tell, having looked at piles of it, only a depressingly small fraction of it was neither jargon-ridden nor obvious.

Things changed when the graphics got better, and games went mass-market and commercial. For me at least, the first sign something was up was when Edward Castronova started writing economic analyses of virtual worlds. Next thing you know there’s an explosion of writing about massively multi-player online role-playing games. In fact, there’s a whole virtual community.

Of course, my participation in all this is something of a cheat, since I’m very much the junior author on the paper, more than half the work having been done my co-author Caroline Bradley.

LOTR3 Without Saruman?

Slashdot | Saruman Completely Cut from ‘Return of the King’

Far be it from me to venture into the culture wars, but this is nuts.

White House Caves on 9/11 Documents

Yahoo! News - White House, 9-11 Panel OK Documents Deal.

Basically the White House just caved to the 9-11 investigators on this one in the face of a threat of a subpoena (and falling poll numbers…). The full Commission won’t access the documents—which include the Presidential Daily Brief—instead only a sub-committee (picked by the committee) will get access. That means there’s a fig leaf for the White House. But the sub-committee can share what it learns with the rest of the committee. So it’s a pretty threadbare fig leaf.

The AP story gives one account of what the fuss might have been about (in addition to any administration’s natural institutional reluctance to share intel with investigators), which it says is a year old, but I had never heard before:

The White House confirmed last year that one such report in August 2001, a month before the attacks, mentioned that al-Qaida might try to hijack U.S. passenger planes. National security adviser Condoleezza Rice (news - web sites) has described the report as an analysis, rather than a warning, and said hijacking was mentioned in a traditional sense, not as it was used on Sept. 11.

What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows

I usually like Linda Greenhouse’s work, and I’ve been trying to figure out why this news analysis item on the Supreme Court’s decision to hear the jurisdictional aspect of the Guantanamo detainees case is so annoying.

For starters, I don’t find the account of the Court and the Executive going toe to toe while hepped up in “alpha mode” at all convincing. (I also don’t find it attractive, but that’s a different issue.) She writes, “it now appears that the administration laid down a challenge the justices were unwilling to ignore. This was a moment long in coming: the imperial presidency meets the imperial judiciary.” I think this is way over-dramatic for a ruling to grant cert. on jurisdiction.

Greenhouse argues that the administration took a needlessly hard line in arguing the court should deny cert. and this somehow poked a stick in the court’s metaphorical eye. But what else was the Solicitor General supposed to do?

The government won unanimously below on the jurisdictional grounds, there is no circuit split (quite the contrary), so why on earth should they invite the Supreme Court to rule, which can only hurt the Administration’s position? In any case, when a matter has international law overtones — and the question of where our domestic law runs always does — it’s not surprising that the nation’s highest court might think it appropriate to get involved.

Is it true that, “The administration’s argument that the Supreme Court should not even hear the cases was thus a direct challenge to the court’s sense of itself, a battle joined on the court’s own most sacred ground”? No. Not at all. After all, the basis for the administration’s argument, one that prevailed below, is grounded directly in a plausibly apposite decision of that same Supreme Court.

And the claim that the government should have defended the cert petition “on the merits” is just plain wrong: the court below did not rule on the merits, so the merits are not before the Supreme Court.

And, for a final annoyance, after having psychologized the court on the basis of a one-paragraph grant of cert., Greenhouse concludes with this,

The battle over who gets the last word in this round may have little bearing on the fate of the Guantánamo detainees. Even if the court finds jurisdiction, it is highly unlikely that any federal judge would order a detainee’s release over military objections. But that does not diminish the importance of what happened on Monday, when the Supreme Court could have turned away but decided, instead, to decide.

In other words (shorter Linda Greenhouse?),

• I can read the Justice’s hearts and minds and measure their testosterone, but I can’t tell you what they are going to decide.

Maybe I’m just a perennial optimist, but I think the grant of cert. is a marginally good sign. Grants of cert where there’s no circuit split can be just because of the importance of an issue, but sometimes they’re because members of the court think the lower court(s) erred.

And, as noted in an earlier and better Linda Greenhouse item, something can be learned from

a comparison of how the administration phrased the question presented by the two cases with how the justices phrased it in their order granting review. Solicitor General Olson said the question was whether the federal courts had jurisdiction to decide the legality of detaining “aliens captured abroad in connection with ongoing hostilities and held outside the sovereign territory of the United States at the Guantánamo Bay Naval Base, Cuba.”

The Supreme Court, by contrast, said it intended to decide the jurisdiction of the courts to hear challenges to “the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Bay Naval Base, Cuba.” The court’s question incorporated no assumption about whether the base was or was not “outside the sovereign territory of the United States.”

Which at least leaves open the possibility of a fairly narrow ruling applying only to territory where the US has a perpetual lease and a permanent presenence. That would do, for now.

William Safire: Tactics Over Truth

William Safire bought me lunch once.

There. That’s a William Safire leed. Has nothing to do with what I’m really going to write about, but it situates me as being a Player. ‘Course, when Safire has the personal item it’s a signal he’s going to be nice to the guy (it’s almost always a guy) who was nice to him.

I’ve been reading Safire since he started at the Times. He does have some good qualities as a writer. For example, I think his book on Nixon, Before the Fall, is vastly under-rated. (It begins with meeting Nixon in a Moscow kitchen, the location of the famous Nixon-Khrushchev kitchen debate where Safire was the pitchman for the kitchen-manufacturer. You can see the famous picture Safire took of the debate here.) The book reads like it started out as a piece of puffery, and then took a sharp turn when Safire discovered that Nixon’s Kissinger had bugged his phone.

After all, if Nixon and Kissinger were nuts enough to suspect even true-blue die-hard loyalists like Safire, then maybe there was something wrong with the Nixon administration after all. Not everything, mind, but something.

So the end result is a very readable insider’s book, more balanced than you might think, with plenty of musings on the layercake that was Nixon, and great anecdotes about all the folks who get famous later in the Watergate hearings.

Plus I like his Lincoln book. Not as much as I like Gore Vidal’s, but I like it.

OK. That paid for lunch.

I read Safire’s column regularly. Not because I think it’s accurate. Not because my blood pressure really needs the stimulus. But because it’s so transparently tactical.

Today’s column, Never Love a Stranger is a prime example of the genre. Naturally, no Safire column would be complete without some germ of truth. Here, it’s used up in the opening: there doubtlessly are a lot of DC insiders who are not pleased at the idea of a Dean victory. Outsiders can be threatening.

But after that, it’s all tactical positioning in which Safire transparently (do you think he thinks we aren’t on to him?) tries to define, or mis-define, the folks he dislikes. You know that the Republicans must actually be worried about Dean if Safire feels a need to try to label Dean as McGovernite (pity this meme turns up in more sensible places too). It ought to be tough to paint a balanced-budget guy whom the NRA likes as a McGovernite, but I guess that’s the strategy; or the tryout at least. (Note how Safire subtly denigrates the balanced-budget Democrats as (1) all being for it, so it’s not interesting, and (2) worrying that Bush will luck out and there will be a boom.

And of course, there’s yet another outing for that Republican pet dream, Hillary for President. Republicans would love that — run against the candidate with the high negatives. Odd thing is, there are no Democrats supporting this plan, but that doesn’t stop it being a Safire hobbyhorse.

I wish Safire would turn his gifts to actual reporting, instead of constantly trying to (mis)characterize things. But perhaps his formative years as a pitchman for kitchen goods just left too strong a mark.

And even though Mr. Safire bought me a nice lunch at the Army-Navy club, he never wrote the column I was trying to interest him in. Seems the Republicans he called told him ICANN was about privatization, so he couldn’t be against it. Tactics, again.

How Dean Bagged 2 Unions

The Washington Post tells the official inside story of how Dean bagged the Service Employees International Union (SEIU) and American Federation of State, County and Municipal Employees (AFSCME) endorsements.

Gephardt’s reaction: AFSCME “turned over the country to the Republicans for four more years.” But by the time you finish the story, you think Gephardt’s wrong.

For example, there’s Dean’s arrogance — the good kind, the kind that wins elections:

at the beginning of their discussions, Dean was not on either union’s list of likely endorsees. Last December, at one of their first meetings, Stern asked Dean if there was any way he could help him, thinking he could open some union doors to the little-known candidate. “He said, ‘Well you can endorse me,’ which I thought was a pretty bold, first opening comment,” Stern said. “And I said, ‘Well, we’re a little far away from that,’ and he said, ‘Well, if you endorse me, I’m going to be president.’ “

And there’s hard work.

The SEIU offered all the candidates the same resources: a list of their local leadership and a warning that the route to the endorsement began not in Stern’s fifth-floor office on L Street NW but through the rank and file. “Everybody got the same advice,” an SEIU official said. “Howard Dean took it to heart.” No other candidate came close to Dean’s outreach. “Shockingly” not close, Stern said.

And then there’s this:

[AFSCME President] McEntee had also asked two top advisers, executive assistant Lee Saunders and political action director Larry Scanlon, to go out and look at the headquarters operations of the campaigns. When they got to Dean’s Burlington headquarters in late October, they found energy, innovative use of technology, fundraising prowess and a clear strategy for winning.

“They were blown away in Burlington,” McEntee said.

Indefinite Lockup (No, Not Gitmo)

The Miami Herald | 11/11/2003 | State’s sex predator law goes too far, some argue

The issue is the so-called Jimmy Ryce Act, §§ 394.910-394.931, Fla. Stat.

The statute provides for indefinite confinement of sexual offenders who are currently incarcerated, to continue until they are pronounced ‘cured’ which in the very large majority of cases so far means ‘never’. The statute doesn’t actually say that they must be incarcerated for the sex crime — and the plaintiff in this case committed a rape 20 years ago, was released in 1991, but has been re-arrested since for various crimes of violence.

The Florida Supreme Court has said the Ryce Act is basically constitutional but it has yet to rule on whether the statute can be applied to inmates who committed a sexual offense in the past, but are currently incarcerated for a non-sexual offense.

The 5-year-old law is so sweeping that prosecutors have been using it indefinitely detain people who have served out their sentences for non-sexual crimes. These people, like Tabor, 46, have committed a rape or molestation decades ago, been released, and then re-arrested for some other crime not sexual in nature.

At Monday’s hearing in front of the Fourth District Court of Appeal in West Palm Beach, judges pointed out that the current interpretation of the law would allow prosecutors to label someone a sexual predator after he was imprisoned for a DUI offense, even if his sex crime dates from the 1980s.

”Is there anything rational about that?” Judge Larry Klein asked during the hearing. How different is that than rounding up decades-old sex-crime convicts who are just ”out and about?” he continued.

…

Florida keeps 429 people in a former prison in Arcadia that serves as a treatment center for sexually violent predators.

Many have been locked up since 1999, since the state first opened such a facility.

The state has yet to come up with a clear method of graduating them from treatment and into society. As a result, few have been released.

About 13 other states have similar laws and courts have so far agreed they meet constitutional requirements. Florida’s Department of Children & Families, which oversees the state’s program, estimates that about 10 percent of the men held at Florida Civil Commitment Center in Arcadia have been detained following prison sentences for non-sexual crimes. Like Tabor, they had long ago served sentences for sex crimes.

If appeals judges decide in Tabor’s favor, it would directly affect those cases and many future sexual predator cases.

Of course, the plaintiff in this case is not exactly sympathetic:

Tabor served all his prison time for a rape 20 years ago in a Fort Lauderdale hotel. He was released from prison in 1991 and hasn’t been accused of another sexual offense since. He was later arrested for beating up a dog, then, later a cop, among other crimes.

Nevertheless, should he subjected to this:

A psychologists said he had an anti-social personality, but not a sexually deviant personality. Nonetheless, a jury unanimously agreed he was a sexual predator who might commit a future crime if released. The standard for locking someone up as a sexual predator is lower than the ”reasonable doubt” standard used in criminal cases.

At Tabor’s civil commitment trial, jurors also learned about a 1976 case in which Tabor beat a man in Miami with a steel rod shortly before someone else killed the man. They also heard information about a 1979 sorority rape charge against Tabor that was never prosecuted.

Although this verdict has a ring of rough justice to it — Tabor doesn’t sound like my ideal sort of neighbor! — the trouble is, the statute is about claims of being a ‘sexual predator’ not about predictions of future dangerousness generally. Those predictions are hard to make in a scientific fashion, and the Supreme Court hasn’t said, and isn’t that likely to say, that the fear of mere ordinary dangerousness without a finding of insanity is enough to lock people up after their jail terms have expired. And indeed, that rule would be pretty dangerous.

DRAFT International law exam question writing rules

DRAFT International Law Exam Write-a-Question ground rules

1. Your task is to write a question that could form part of the final exam in International Law.

2. Participation in this question-writing program is not optional. The quality of your participation will be factored into your class participation grade.

3. Questions should be no shorter than two sentences and no longer than one page, single-spaced, with ordinary type face and margins. They can be theoretical questions, hypothetical questions, purely legal/interpretive questions, or any other standard law school exam question.

4. In addition, you should append an outline of your suggested answer. In so doing you should note whether you think there is only one possible answer, or whether there are multiple possible (or arguable) answers. You should also note the most relevant cases, treaties, or other readings, i.e. those that one would ordinarily expect a student to discuss/cite in her/his answer.

5. Generally speaking, I tend to prefer questions for which more than one answer is plausible but this is not a requirement.

6. Questions are due by Tuesday Nov. 25, which is our last regularly scheduled class. E-mail submissions to [email] are preferred, but paper turned in in class is acceptable. I will acknowledge receipt of emails, and you should resubmit anything that isn’t acknowledged within 24 hours.

7. I will read all the question and separate them into two groups: those that I think couldn’t be on the exam, and those that (perhaps with light editing) could be part of the exam (the “possible pile”).

8. If there are two or fewer questions in the “possible pile”, I will so inform the class. I may or may not use one of the questions on the exam.

9. If there are three or more questions in the “possible pile”, I will publish them on the class web page by Dec. 1. At least one of these questions, and possibly more, will appear on the exam, either as an optional or required question.

Silence is Golden

Wow. A day I’m so buy I can’t post, and traffic goes through the roof suddenly bringing me to over 10,000 unique visitors in less than two months! (The ‘unique visitor’ is counted on a daily basis, so anyone who visited fifteen times over seven days would be counted seven times.) I moved well over a gigabyte of data in the last 30 days, and that’s with few graphics. Good thing my hosting contract allows me about ten times what I used.

Why is today so busy? Tuesdays are my heaviest teaching and class prep day, plus we had a truly delightful two hour committee meeting in the middle of the day. And did I mention the kids are home from school today because it’s Veteran’s Day? But the law school is open…

Supreme Court Grants Cert to Decide if Guantanamo Detainees Can Be Heard in Our Courts

Supreme Court Takes First Case on Guantánamo Detainees. The Supreme Court granted cert in and consolidated two cases relating to the Guantánamo detainees. Both raise purely jurisdictional issues.

In one case, Rasul v. Bush (No. 03-334) three detainees’ parents sought writs of habeas corpus. Here’s the cert petition.

In the other case, Al Odah v. United States (No. 03-343) (cert petition), relatives of twelve detainees sought to challenge the legality of the detention under the Alien Tort Statute, 28 USC § 1350, the Administrative Procedures Act (APA), and the 5th Amendment. They sought a declaration that the detention is arbitrary and capricious, and that the detainees should have an opportunity to speak to a lawyer.

The D.C. Circuit ruled in both cases at once, holding that “the courts are not open” to the detainees, 321 F.3d 1134, because Guantánamo is outside the sovereignty of the United States, and our courts thus lack jurisdiction to hear their claims. The court opinion, authored by Judge Randolph, comes with an interesting concurrence by … Judge Randolph, in which he really goes to town, not only rejecting the dominant reading of the Alien Tort Statute and offering one that effectively neuters it, but also finding that the APA provides no relief for the plaintiffs.

While I disagree vehemently with the view that there is no federal habeas jurisdiction, nor jurisdiction via the Alien Tort Act, I think at first glance that I do agree with Judge Randolph about the APA claims. The APA explicitly does not apply to the military.

The path of least resistance for the Supreme Court is to do what the lower courts did and follow Johnson v. Eisentrager, 339 U.S. 763 . I explained in an earlier post how Application of Yamashita provides an alternate approach under which the courts would have jurisdiction to hear this claim.

Let’s hope that the Supreme Court has the courage to step up to the plate on this one.

If it doesn’t, it becomes our collective moral obligation to demand that Congress extend its undoubted power to extend the jurisdiction of the federal courts to Guantánamo. Not that I’ll hold my breath, you understand.

Katherine Harris, Superstar

The Florida Blog points to this stimulating but very high-bandwidth Flash animation about possible Florida GOP Senate candidate Katherine Harris: GRAND THEFT AMERICA.

I do have two and half beefs with the show. First, I’d have liked footnotes for the statistics. Second, it leaves out my favorite Katherine Harris story, in which she demonstrated ignorance of the laws she was supposed to administer. And (the half), there’s an explitive that may offend sensitive viewers, especially the sort not already sickened by electoral manipulations.

Another Step Towards the Return of the Spoils System

The radicals in the Republican Party are morphing the non-partisan civil service into something that more and more resembles the spoils system. This is one of those below-the-radar changes likely to have massive if obscure effects.

The political spoils system has some virtues. It makes accountability clear: no bureaucrats to blame if you can hire and fire them. It may make the bureaucracy more efficient, in that it makes firing the incompetent easier. To the extent that salaries are flexible, it may make hiring and retaining good people easier. The thought of government jobs may encourage more people to work in politics (I think that’s a good; some might call it a bad).

Of course, political hiring and firing has substantial disadvantages too. Good people may be less willing to work in government if they know that they can be fired by an incoming administration even if they’re doing a great job. It encourages featherbedding. Bad people with good political connections can stay in office where in a more merit-based system they might not. Whistle-blowers become an even more threatened species. Generally, politicizing the civil service means rapid turnover when administrations change. That tends to be bad for the quality of government administration: institutional memories are lost, wheels are reinvented, dumb things happen.

Although the Hatch Act of 1887 has been modified at the higher levels by the creation of the Senior Executive Service to permit political appointees somewhat more leeway as to who their top civil servants are, the basic idea of a non-spoils, non-political federal bureaucracy has been the American way for generations. There are also some Supreme Court cases holding political firing of lower-level employees unconstitutional, although I’ve always had my doubts about the correctness of those decisions.

This week’s changes don’t completely undermine the Hatch Act. They don’t make straightforward political hiring legal, but they remove some (but not all) of the existing obstacles to political firing and pay cuts (and pay increases) for about half the civilian workers in government. They’ll probably lessen the power of government unions.

Unless there’s some sort of immediate institutional bloodletting, which I think highly unlikely, it may take years to see the full effects of this one, be it good or ill.

Polls: When 'Approval' Doesn't Mean We'll Vote For You

These poll numbers do not add up. In the latest Marist poll 44%, say they’ll vote against Bush. Bush’s strong fans, 38% in number, are ready to re-elect him now. “The remaining 18% are not committed either way.”

It follows that if the election were today, in order to win Bush would need to get two votes out of the undecided column for every one his opponent got: a big gap, albeit not unbridgable. (And it’s early days anyway, and the Republicans are going to have 200 million dollars to make up the gap.)

But, despite the negative re-elect numbers, among those polled Bush’s “approval rating” is 53%. These numbers are not mathematically inconsistent, but they don’t make political sense.

It could be that of the 18% who are not ready to vote for Bush yet, 83% (15/18ths) are leaning to Bush. But that seems politically unlikely. What’s going on? Is it that lots of people “approve” of him but don’t approve of him enough to vote for him?

More coherent, although also slightly odd, are these numbers from Newsweek’s new poll . It too finds the “approval rating” at 52%. But, 50% of those polled (including persumably at least 2% who ‘approve’ of Bush’s on-the-job performance) don’t favor his re-election, while 44% do. As for independents, usually swing voters, “A majority of independents, 53 percent, said they oppose Bush’s re-election, while 40 percent favor it.”

I know that serious politicos treat the “re-elect” number as the one that matters, and that despite this the press usually focuses on the “approval” number. These polls suggest that the approval number means even less than I thought.

The Administration Takes Advantage of Lie Fatigue

This story should be page one in every major paper, but as far as I can tell from a search on news.yahoo.com, the only paper in the land to carry it is the Ocala [Fl.] Star Banner: Rumsfeld retreats, disclaims earlier rhetoric: Rumsfeld denies he ever made several pre-war statements.

Think about it. The Secretary of Defense is either delusional, or a really stupid, clumsy liar. Asked about his claims that the Iraqi people would welcome us with open arms, he didn’t try to argue that most of the country (by area, not population volume) welcomes the US-led invasion, but rather denied he had ever said it:

“Never said that,” he said. “Never did. You may remember it well, but you’re thinking of somebody else. You can’t find, anywhere, me saying anything like either of those two things you just said I said.”

But he had. On TV.

It used to be that brazen lying was bad for political figures (for example, Gary Hart). Is there some special reason that Rumsfeld gets a free pass? Or is the media, the nation, so saturated with Administration lies that it has stopped caring? Or is it that ‘objective’ journalism as practiced today doesn’t allow reporters to point out lies, just to report if someone else — and it has to be a heavyweight politician, a mere web site doesn’t count — tries to make an issue of the lies? (Calling Sen. Daschle’s office. Calling Sen. Daschle’s office. Why is the lead item on your homepage meat labeling rules???)

The Ocala Star-Banner has an average daily circulation of about 50,000.

Email outage

The law school is doing electrical work and has shut down our network, including our email server. As a result, any email sent to me today will either be held until tomorrow or bounce.

Profile in Courage

You do read some humbling things online. Here’s one: t a c i t u s: Failure of nerve.

Impressive as this is essay is, I wonder if the non sequitor with which it concludes is correct: Is it wrong to think that, on average, politicians who have served in the military may be more sensible in their use of force than those for whom combat is an abstraction? And even if that is wrong, does it follow that it’s wrong to suspect draft-evaders, again on average, of middle-aged over-compensation?

History is an uncertain guide. For example, both Lyndon Johnson and Richard Nixon served in the Navy, and both escalated in Vietnam. Clinton had a draft deferment and built a great big military. Current events, however, strongly suggest a conclusion.

Employment Numbers Demystified

It’s good that a little bit of the defict-pumping tax cut is trickling down to working people. What’s surprising is not that employment is up, but how little. What’s even more surprising is how ineptly the numbers are being reported in the newspapers.

Comes now MaxSpeak to draw a picture and set us all straight. “OH PROMISE ME …” has a nice simple picture we can all understand, comparing the jobs the Administration promised its economic plans would create to the jobs actually produced. Worth more than a thousand words, easy.

The Harris Scenario in the Florida Senate Race

Harris turns eyes toward Senate suggests that if Katherine Harris runs for the GOP senate nomination and gets it, her presence on the ticket will energize Democratic voters. There’s a lot to that. Being as amazingly inept as she is, she may turn off Republicans too.

But there is a scenario in which she gets elected. It goes like this: the primaries don’t have run-offs — whoever gets the most votes wins. The Democratic primary is going to be crowded, and may become ethnicized, with votes split up between one Hispanic (Miami’s own, tarnished, Alex Penelas), one Jewish candidate, Rep. Peter Deutsch, one Afro-American, Rep. Alcee Hastings, and several Anglos. If either Penelas or Hastings were to win the nomination, Harris might win the general election.

Hasting’s negatives are being Black, unabashedly liberal, and too smart. I’ve met him. Boy, is he smart. Very, very impressive, but I don’t think that will play well upstate.

Penelas’s negatives are complex, and not strictly racial: he’s widely considered to have sabotaged the Gore campaign in 2000, and there are also allegations of fundraising irregularities. Worst of all, from the point of view of a state-wide election, Penelas said he would not support the operation of the ordinary legal process in the Elian affair.

Just from an electablity perspective, Harris would be an awful candidate for the Republicans, yes. But, don’t underestimate the Florida Democrats’ ability to nominate an even less electable candidate.

ABC's The Note Has 18 Things To Say About Howard Dean

It looks increasingly like the two main things between Howard Dean and the Democratic nomination are…his mouth and his temper. Given that a bunch of Democratic candidates have been excoriated for wimpishness (Carter, Dukakis, Mondale, Gore but importantly not Clinton), maybe this is the risk one has to take to have a winner. ABCNEWS.com : The Note, the purveyors and shapers of conventional wisdom, have 18 interesting observations about Dr. Dean. I was especially struck by numbers 8, 9, 14 & 18:

1. Dean will raise more money in the year before the election than anyone else seeking the Democratic nomination, and that historically in the modern era is (with one exception) the iron-clad predictor of who wins in both parties.

2. Beyond money, this year Dean has dominated in message and media, two other fabu things to have.

3. None of the other candidates can overtake Dean in the fourth quarter — they can theoretically do damage to him (although, outside damage with the Chattering Class, we doubt that too), but they can’t cripple him. There just aren’t enough people paying attention yet.

4. What doesn’t kill Howard Dean only makes him stronger.

5. Fair or unfair, the media has not held Dean to the same standards as the other major candidates. Wes Clark’s entry into the race sucked up a lot of publicity and took the spotlight off of Dean at the one moment when critical mass was being reached.

6. At the same time, some of Dean’s explanations for his alleged inconsistencies and flip flops are actually pretty convincing.

7. Dean’s core supporters don’t care about Sunday show gaffes and pratfalls, New York Times editorials, or what Terry McAuliffe or the Dingells think.

8. People actually listen to Dean talk at his events.

9. Dean’s willingness to cede control to volunteers in the states for planning events and executing political activities is an act of confidence and strength, and has directly resulted in his drawing unprecedentedly large crowds and building genuine grassroots support.

10. Most Washington Democrats who are scared out of their wits about Howard Dean as their nominee have never been to a Dean event and don’t have a genuine understanding of WHY he has succeeded this year.

11. Skipping the matching funds is a general election strategy, not a strategy for winning the nomination.

12. Governors do well as presidential candidates, and the members of Congress who are running against Dean still for the most part haven’t learned not to talk like they are from Washington (“We CAN get Breaux-Gilchrest out of conference!!!! We can DO it!!!! And then passed by both chambers!!!”). Dean talks like a real person, and voters like that.

13. Dean is no newcomer to national politics; his work on the NGA and DGA (where he recruited ruthlessly) gives him as much applicable experience as almost anyone else running.

14. Howard Dean doesn’t have cable TV.

15. Howard Dean has not developed a general-election winning message on the economy — yet.

16. Dean can theoretically win a general election race against President Bush, but not without growing significantly as a candidate and a person, including and especially in his rhetorical and symbolic relationship to faith, family, freedom, and national security.

17. All of the other five major candidates think they can and should be in the end the Dean Alternative, and each has enough hold on key state and national support that they have no incentive or desire to get out of the race and consolidate beyond one of the others. The pro-war candidates in particular are splitting a piece of the pie that is large, but it is still a SPLIT piece.

18. The people who work for DeanforAmerica have FUN, from the interns in Iowa to the senior stuff; the staffs for the other campaigns don’t always remember to do that.

The Joy of Filtering

It seems I am not the only one to have modified their link to the Volokh Conspiracy to eliminate the high volume of posts from the most voluable and least interesting conspirator. As of yesterday, the link in the left margin leads you to a Cori-free version. Not to censor, but because that’s how I decided I liked to read it.

John Holbo Deconstructs David Frum

I don’t know if this essay by John Holbo [link corrected] deconstructing David Frum’s book is right, because I haven’t read the book it attacks. (And, if truth be told, I’m especially unwilling to jump to conclusions because I used to know David Frum in college, long ago.) But I will say the Holbo essay is an elegant and very readable piece of writing in itself. Often people who write clearly think clearly too, so I’d bet that if it’s wrong, then odds are it is wrong in an interesting way.

“Radical sartorauthoritarianism”? Gotta love it.

Just One More Step Away From Accountability

Daily Kos flags a Washington Post article on a new Bush administration tactic to avoid pesky questions from Congressional Democrats — simply announce that you will no longer answer them. Henceforth, the White House wll only aswer questions approved by (Republican) committee chairs. This ensures that nothing troubling will be asked, solving the problem of both volume and content in a single stroke.

Abstractly, you can imagine a world in which the flood of informational requests from the Congress begins to overwhelm the White House, although there is no evidence that we had reached that point. If the White House’s response had been some sort of quota system, eg. N questions per representative per month get priority attention, the rest go to the bottom of the pile, I might understand that. In fact, however, the policy seems to be a response to questions about the provenance of the shipboard “Mission Accomplished” banner that Bush has been trying so hard to disown recently.

This is just dirty. And so is this White House statement, “It was not the intent to suggest minority members should not ask questions without the consent of the majority.” Right. In which case Director of the White House Office of Administration, Timothy A. Campen, should be fired quick, since he sent an email with a policy which can only be understood to do exactly that.

Given the unending stream of humiliations and provocations being visted on them, it would take saintly virtue for Congressional Democrats to refuse to retaliate in kind when, in due course, they become the majority party again. And while I tend to support Democrats more than other parties, I would not generally call them saintly.

Presidential Candidates Can Turn Feral

Presidential candidates in decline can turn feral (actually, the same is true of any politician who feels the ground sinking beneath him or her). Dean is beginning to build an inevitability meme — or at least to grow his campaign to the point where (1) even smart analysts are afraid to bet against him (I heard an analyst on NPR today refuse to say that Dean couldn’t win votes in the South, noting that Dean keeps beating his expectations), and (2) the campaign dynamic begins to be ‘is there anyone other than Clark to become the ABD candidate’.

As the air gets sucked out of other campaigns, we’ll see their real test of character begin. Will the candidates do the decent thing for the party and stick to the high road, even though it means likely defeat for their own candidacy? Or will they do the expedient thing, and do George Bush’s work for him by going nasty, mean and negative?

For no candidate is the choice as stark as for Senator John Kerry. For he has the most to lose by far from the Dean Machine: Not only does Kerry lose what’s left of his (anointed within the Beltway) front-runner status, but alone of the serious candidates he has no hope of being chosen as Dean’s Veep, since a Massachusetts Senator adds nothing to the ticket headed by a Vermont Governor.

Current indications are that, faced with this painful test of character, Kerry is flubbing it: Kerry Opens New Attacks Against Dean,

Democrat John Kerry accused presidential rival Howard Dean of lacking principles and flip-flopping on key issues Thursday, hoping to convert the front-runner’s fumble over the Confederate flag into a sweeping indictment of Dean’s policies and personality.

“I think Americans deserve straight talk. I think they ought to know who Howard Dean is,” the Massachusetts senator said.

Pity. I thought better of Kerry than that. Can’t he ever throw away the consultant-driven campaign playbook?

Almost the Ultimate Dog Headline

Yes, here it is, not quite “Man Bites Dog,” but nearly the ultimate headline and certainly the stuff for a slew of good law school hypotheticals, Dog Shoots Man. [Update: the link died, but there’s a better one.]

ARIS (Reuters) - A French hunter was shot by his dog after he left a loaded shotgun in the trunk of his car with two dogs and one of the animals accidentally stepped on the trigger, police said Wednesday. …

[Update 2: It’s a regular epidemic! It happened in New Zealand in December.]

We're Hosting the First Presidential Debate!

“The first debate will take place Sept. 30, 2004 at the University of Miami in Coral Gables, Fla.” says this article.

Now, how do I get a ticket?

Actually, this isn’t as great news as it could be, since rumor has it that U.M. will have to fork out serious cash as host institution….

More about the debate organizers.

Fruits of the Bush Doctrine

Putin reaffirms Russia’s right to preemptive strikes

President Vladimir Putin has reaffirmed his position that Russia can resort to preemptive military strikes because the policy is also practiced by the United States.

“If the principle of preventive use of force continues to develop in international practice, then Russia reserves the right to act in an analogous manner to defend its national interests,” Putin said in an interview whose transcript was released Tuesday.

Mind you, this is more bluster than anything else — for now:

But later, speaking in the United States, he assured NATO countries that Moscow was not seeking to adopt a preemptive nuclear strategy.

“Russia still regards nuclear weapons as a means of political deterrence. We do not envisage a scenario or a situation where we would use such weapons first,” said Ivanov on October 9.

Nevertheless, if the Bush Doctrine is to be taken seriously, there’s no way to limit its use to invasions by nations we like — or against nations we don’t like.

It’s probably not too late for the next administration to undo the damage to international legality; given the wide range of candidates, it’s quite unclear whether the next administration will consider this a priority, or even want to.

Cryptome Gets a Visit From the FBI

FBI Visits Cryptome: Special Agent “Kelly said such visits are increasingly common as the FBI works to improve the reporting of information about threats to the US.”

I wonder if visiting web site operators to ask them to report stuff to the FBI is really the best use of our federal police force: Two agents for this? Or even one?

Note that while I can’t say I’m delighted by the FBI going to web site operators and asking them to be government informants (for the same reasons I wouldn’t like the FBI to do this to other types of reporters), as far as I know it is legal. And so long as these meetings are not attempts to intimidate, and as long we don’t get people being investigated merely for being uncooperative when asked to become FBI informants, they’re certainly something we can live with.

I’ve long believed that journalists have the same basic duties as other citizens, just as other citizens have the same First Amendment rights as journalists. That means that reporters should sometimes feel morally obligated to share information with the cops, especially if it affects public safety. Nevertheless, I think that the FBI, in an exercise of good taste and resource prioritization, ought to be able to find something more useful to do.

Earlier post of mine about Cryptome is here.

What Puts Holes in Abrams M1A1 Tanks?

‘Something’ Felled An Abrams Tank In Iraq - But What? Mystery Behind Aug. 28 Incident Puzzles Army Officials. This story hasn’t gotten nearly enough media. The M1A1 and M1A2 tank are mainstays of the US Army. And this M1A1 appears to have been holed by something new and somewhat mysterious.

Shortly before dawn on Aug. 28, an M1A1 Abrams tank on routine patrol in Baghdad “was hit by something” that crippled the 69-ton behemoth.

Army officials still are puzzling over what that “something” was.

According to an unclassified Army report, the mystery projectile punched through the vehicle’s skirt and drilled a pencil-sized hole through the hull. The hole was so small that “my little finger will not go into it,” the report’s author noted.

The “something” continued into the crew compartment, where it passed through the gunner’s seatback, grazed the kidney area of the gunner’s flak jacket and finally came to rest after boring a hole 1½ to 2 inches deep in the hull on the far side of the tank.

As it passed through the interior, it hit enough critical components to knock the tank out of action. That made the tank one of only two Abrams disabled by enemy fire during the Iraq war and one of only a handful of “mobility kills” since they first rumbled onto the scene 20 years ago. The other Abrams knocked out this year in Iraq was hit by an RPG-7, a rocket-propelled grenade.

Experts believe whatever it is that knocked out the tank in August was not an RPG-7 but most likely something new — and that worries tank drivers.

Mystery and anxiety

Terry Hughes is a technical representative from Rock Island Arsenal, Ill., who examined the tank in Baghdad and wrote the report.

In the sort of excited language seldom included in official Army documents, he said, “The unit is very anxious to have this ‘SOMETHING’ identified. It seems clear that a penetrator of a yellow molten metal is what caused the damage, but what weapon fires such a round and precisely what sort of round is it? The bad guys are using something unknown and the guys facing it want very much to know what it is and how they can defend themselves.”

…

The soldiers of 2nd Battalion, 70th Armor Regiment, 1st Armor Division who were targets of the attack weren’t the only ones wondering what damaged their 69-ton tank.

Hughes also was puzzled. “Can someone tell us?” he wrote. “If not, can we get an expert on foreign munitions over here to examine this vehicle before repairs are begun? Please respond quickly.”

His report went to the office of the combat systems program manager at the U.S. Army Tank-automotive and Armaments Command in Warren, Mich. A command spokesman said he could provide no information about the incident.

“The information is sensitive,” he said. “It looks like [members of the program manager’s office] are not going to release any information right now.”

While it’s impossible to determine what caused the damage without actually examining the tank, some conclusions can be drawn from photos that accompanied the incident report. Those photos show a pencil-size penetration hole through the tank body, but very little sign of the distinctive damage — called spalling — that typically occurs on the inside surface after a hollow- or shaped-charge warhead from an anti-tank weapon burns its way through armor.

Spalling results when an armor penetrator pushes a stream of molten metal ahead of it as it bores through an armored vehicle’s protective skin.

“It’s a real strange impact,” said a source who has worked both as a tank designer and as an anti-tank weapons engineer. “This is a new one. … It almost definitely is a hollow-charge warhead of some sort, but probably not an RPG-7” anti-tank rocket-propelled grenade.

…

OK, the M1A1 is a little long in the tooth (mid-80s mostly), overweight, and drinks fuel like crazy. In contrast, M1A2 is vintange 1993, overweight, a fuel hog, but carries improved armor.

Both types of tank have been deployed to Iraq. The idea that the tank has some vulnerabilities is not utterly new.

Coincidentally, another Abrams — the latest model this time — was taken out, a couple of days ago by a “roadside explosion”.

Today's Political Vocabularly Lesson

If the administration lies to the nation about an imminent threat and drags us into a pre-emptive war that has nothing to pre-empt, then engages in denial and a cover-up, and tries to stonewall a Senatorial committee, all that is Patriotic. It is most certainly not Partisan and never, never, never even think that it might be a Plot. Oh my, no.

But suppose that Senators become concerned that the administration might be hiding something important to our national security like, maybe “misleading, if not flagrantly dishonest, methods and motives of senior administration officials who made the case for unilateral preemptive war”. And suppose those Senators decide that the administration has no intention of ever releasing key documents, and certainly not before the next election, so they start discussing contingency plans to force the documents’ release.

Well, that is not Patriotic because George Bush might not like it. No, that is a Plot by those awful Partisan, nay maybe treasonous people.

PS. Don’t tell Osama, but according to the Chairman of the Senate Intelligence Committee — who ought to know — the Global War on Terror™ is going so badly that it can be compromised by publication of a single memo. And who was it who went through the garbage to steal this document with this terrible possible effect on national security, and than ran to the media with it? It was Republicans? Oh. (Think that maybe heading off an independent inquiry is becoming an an important priority for the Republicans, who of course Have Nothing To Hide?)

Well, don’t worry, children, it’s still the Democrats’ fault if you don’t think about it too hard.

Accountability is Treason!
Stonewalling is Patriotic!
Fighting Terror Requires Unquestioning Obedience!

MKB Docket Says Government Reply Due Dec. 3

Who you gonna believe, AP or the Supreme Court web site? The newly revised Docket for 03-6747 says,

Nov 3 2003 Response Requested . (Due December 3, 2003)

Nov 3 2003 Brief amicus curiae of Reporters Committee for Freedom of the Press filed.

That “Response” is the one from the Government that the AP reported had no deadline (which would have been very odd). If anyone has a pointer to an online copy of the Reporter’s Committee brief, I’d appreciate it.

Thanks to Marty Lederman for the heads up.

Incidentally, I discovered yesterday that one of my new, wonderful colleagues, Ricardo Bascuas was at the Miami PD’s office when this all happened, and is writing an article on the M.K.B. case.

Update: Marty Lederman has full procedural details at the SCOTUSBlog

Nicholas Kristof Thinks 'Bush Lies' Is the Rosy Scenario

Brad DeLong has made a small industry of noting how the Bush administration lies by reflex (which is not at all the same thing as making it an art form). Sample titles:

• Is There Anything the Bush Administration Doesn’t Lie About?
• Why Does the Bush Administration Lie All the Time?
• Why Are We Ruled by These Liars?

Nicholas D. Kristof has just woken up to this reality. But only partly — he blames the evil courtiers and partly exonerates the evil bosses duped by their henchmen. In Death by Optimism he recounts the following story:

Mr. Cheney has cited a Zogby International poll to back his claim that there is “very positive news” in Iraq. But the pollster, John Zogby, told me, “I was floored to see the spin that was put on it; some of the numbers were not my numbers at all.”

Mr. Cheney claimed that Iraqis chose the U.S. as their model for democracy “hands down,” and he and other officials say that a majority want American troops to stay at least another year. In fact, Mr. Zogby said, only 23 percent favor the U.S. democratic model, and 65 percent want the U.S. to leave in a year or less.

“I am not willing to say they lied,” Mr. Zogby said. “But they used a very tight process of selective screening, and when they didn’t get what they wanted they were willing to manufacture some results… . There was almost nothing in that poll to give them comfort.”

Mr. Kristof is concerned by this. Not because a fish rots from the head, or because he thinks that this sort of behavior has been the G.W. Bush M.O. since at least his governorship, if not his career as a military deserter. No, Mr. Kristof thinks the Evil Courtiers are misleading that nice Mr. Bush and that clever Mr. Cheney, feeding them bad data and thus leading them down the path of self-delusion:

I wish administration officials were lying, because I would prefer hypocrisy to delusion — at least hypocritical officials make decisions with accurate information.

What evidence we have, however, suggests that the decision to invade Iraq did not depend on any data, true or false, but was a goal of the administration hawks when they took office. Bad data may have influenced the tactics, and the force levels, but there’s nothing to suggest reality had much to do with the over-all strategy.

In any case, even if it were the case that the Evil Courtiers were lying to the Emperor, what creates the conditions in which this behavior is a successful strategy for the careerist courtier? Only a climate that punishes the truth.

So the scary thing is, Mr. Bush and his aides may not be lying when they look at Iraq and boast of a cheering population that a Western press sourly refuses to acknowledge. There’s a precedent: Saddam Hussein.

Could anyone have imagined a year ago that Kristof or other establishment columnists would be comparing Bush to Saddam Hussein? Or that it wouldn’t seem odd?

I Guess This Means I've Arrived?

Since the blog seems to be under attack by a comment spammer (of the idiot-political rather than commercial variety), I will be installing anti-spam patches. I apologize in advance for any temporary instability this causes.

Meanwhile, here’s version 1.01of my comments policy:

1. Participants in the comments are kindly requested to be civil, and at least vaguely on-topic.
   
2. I will delete (or disemvowel) comments that are duplicative, commercial, needlessly foul or mean or otherwise inappropriately offensive.
   
3. My decisions are final. I’m happy to discuss them by email.
   
4. I’ll amend this policy as I gain experience.
   
5. In the long run, it remains to be seen if comments is a workable commons or not.
   

Harold Hongju Koh to be Next Dean of Yale Law

Yale announed yesterday that Harold Koh will be the next Dean of the Law School. Harold was one of my favorite professors in law school, and supervised one of the student papers I wrote — although I suspect it required him to stifle a fair amount of bemusement at my idiosyncratic ideas.

I think he’ll be a terrific Dean.

White House Isn't Handing Over Iraq Intel Documents

It seems that the Senator Paul Roberts now says he spoke too soon about the White House’s willingness to cough up the Iraq Intel documents the Senate committee has requested.

Meanwhile relations between Republicans and Democrats on the Senate Intel Committee, traditionally a haven of bi-partisanship, appear to be breaking down badly. Senator Rockefeller, committee Vice-Chair, pretty much accused Republicans of going through his trash or breaking into his computer. And, for the first time that I’m aware of, the Vice-Chair gently threatened to use his subpoena power if necessary. Clearly neither side wants a fight now. But f the administration doesn’t give in eventually, they may get fireworks much closer to the election.

The chairman of the Senate Intelligence Committee said Tuesday he spoke too hastily when he said the White House would provide his panel with the documents and interviews it is seeking for its inquiry on prewar intelligence on Iraq.

…

Roberts and Rockefeller have been at odds about the scope of the inquiry. Under Roberts’ direction, the committee is examining whether intelligence about Iraq’s weapons programs and ties to terrorists was properly collected and analyzed. Rockefeller and other Democrats also want to examine whether intelligence was manipulated by the administration to make the case for war.

Roberts said Tuesday a leaked strategy memo from Rockefeller’s staff “exposes politics in its most raw form.”

The memo discusses strategy for “revealing the misleading, if not flagrantly dishonest, methods and motives of senior administration officials who made the case for unilateral pre-emptive war.” It discussed how Democrats could press for an independent investigation that has already been rejected by the Republican-led Congress or launch their own investigation.

In a statement, Roberts said that the memo “appears to be a road map for how the Democrats intend to politicize what should be a bipartisan, objective review of prewar intelligence.” The memo was disclosed by syndicated radio show host Sean Hannity.

In his own statement, Rockefeller the draft was not approved or shared with any member of the committee. He said it “was likely taken from a waste basket or through unauthorized computer access.”

He said, however, it “clearly reflects staff frustration with the conduct of the Senate Intelligence Committee investigation and the difficulties of obtaining information from the administration.”

The letters to the administration agencies complained of their slowness to provide materials sought by the committee and set last Friday as the response deadline. The senators said they have received material from three of the agencies. But the White House, while saying it would work with the committee, has not agreed to comply.

On Sunday, Roberts announced on CNN that the White House had agreed to supply the requested documents and the interviews.

“I probably spoke too hastily,” Roberts said Tuesday. “When you are dealing with the White House, they want to make sure they are not getting into a precedent in regard to various documents used by the executive.”

He said a White House official, whom he declined to identify, left him with the impression last weekend the material would be provided. Asked if there was further communication after his remarks Sunday, he said, “Yeah — in the Monday Washington Post.”

He said White House comments in the newspaper distancing it from Roberts’ statements “prompted meaningful dialogue between me and the White House.”

But he said he was satisfied with the outcome of the conversations. “I think we’ll have a positive relationship, and I think the documents will be provided. And the interviews,” he said.

Rockefeller wasn’t as confident.

“It’s very hard for me to come to believe that the White House is going to cooperate on things which potentially could put them in a different light,” he said, speaking separately to reporters.

Rockefeller said if the committee doesn’t receive the material it seeks, the leaders will call the department heads, “and the next step after that one considers very, very carefully the subpoena option.”

“This is not a game,” he said. “This is a question of how did we get into this war.”

Roberts said subpoenas would be a last resort. “I think we can work this out without any subpoenas,” he said.

UK Government to Archive Websites

The British government announces that it is going to create to encourage its depostiary libraries to create a massive web archive.

Websites get legal place in national archive:
Millions of website pages, online magazines and CDs will be saved for the nation under a private member’s bill which became law last week.

Today, the MP who sponsored the bill predicted that Guardian Unlimited website pages would be preserved in the national archive.

The Legal Deposit Law puts the growing number of electronic publications on the same footing as printed newspapers, books and documents which have been collected by law since 1911 for the use of scholars by the British Library and five other deposit libraries.

The existing print legal deposit arrangements have enabled the British Library alone to collect and save, in perpetuity for the nation, more than 50 million items. In the past year, the library has acquired 95,286 books, 248,686 journal issues, 1,994 maps and 2,357 newspaper titles through legal deposit. But that is likely to be dwarfed by the scale of potential electronic deposits: a study last year forecast a massive increase in online publications, predicting a near quadrupling (from 52,000 to 193,000) in the number of electronic journal issues published in the UK between 2002 and 2005. There are nearly 3 million websites with “.uk” in their titles and although many are of merely passing interest, many will be fascinating to future historians - the websites that sprang up after the September 11 attacks but have not disappeared, for instance.

Chris Mole, Labour MP for Ipswich, who introduced the bill in December, said he was thrilled. “This new legislation will now mean that a vital part of the nation’s published heritage will be safe and accessible as an important resource for business and education users in the future.”

He said the British Library, the National Library of Scotland and the National Library of Wales; the University Library, Cambridge; the Bodleian Library, Oxford; and Trinity College Library, Dublin, would have to use their judgment in “harvesting” websites and electronic publications.

…

Publishers have negotiated reassurances from government that they would not be forced to disclose valuable information free of charge - for example short life financial forecasts will not be made available for three months, by which time they will no longer be commercially valuable.

Apart from websites, important local and national government documents, such as the Home Office series of online-only research reports and web-based government consultation papers, which are an important resource for lawyers and researchers in tracing the origin of legislation, and the minutes of the National Assembly for Wales, will be archived.

Former Guantanamo Inmate sues US In Pakistan

BBC NEWS | South Asia | Former Guantanamo inmate sues US

A man who was imprisoned by the US military at Guantanamo Bay, Cuba, is suing the Pakistani and US governments for damages worth over $10m.

Pakistani cleric Mohammed Sagheer was seized by US troops fighting in Afghanistan in 2001.

He spent roughly a year with other suspected al-Qaeda and Taleban operatives in the US military prison.

His lawyers say he is suing for the mental and physical torture he endured at Camp X-Ray in Guantanamo Bay.

‘Treated like an animal’

Mr Sagheer filed his suit in an Islamabad court on Tuesday.

Lawyers acting for him said the case could be heard in a Pakistani court because Pakistan’s interior ministry is one of the defendants.

In the first case of its kind, Mr Sagheer described his arrest by American authorities as illegal and his treatment at the prison camp in Guantanamo Bay as extremely inhuman.

He says he was kept for more than a year in a prison cell that was like a cage meant for animals.

During this period he says he was treated in the worst possible manner and was repeatedly interrogated about his links to al-Qaeda and Osama bin Laden.

Despite insisting that he no ties to the Islamic militant group, Mr Sagheer says he was punished by the authorities for what they saw as his lack of co-operation.

After being released by the Americans, Mr Sagheer says he was sent back to Pakistan, where he spent a few more days in detention.

The court has decided to hold a preliminary hearing for the case in the third week of December.

I suspect that the US will plead sovereign immunity and act of state, if it even shows up to defend. As the act of state doctrine has roots in the comity among nations, I imagine that Pakistan would ordinarily respect this claim…

On the other hand, if the Pakistanti court were to decide that the ‘torture’ alleged violated fundamental norms of international law, it might not dismiss the claim out of hand, as it is sometimes suggested that act of state ought not to protect against fundamental violations of international law.

Two earlier BBC stories on this are here and here.

M.K.B. v. Warden, 03-6747 (Secret habeas) Latest

AP reports ,

The Supreme Court on Tuesday asked the Bush administration to explain the secrecy surrounding the detention of one of the immigrants arrested after the Sept. 11 attacks.

The administration has refused to release the names and other details of hundreds of foreigners rounded up after the attacks, arguing that a blanket secrecy policy is needed to protect national security.

One of those immigrants, known only as M.K.B., challenged his detention. But even that has been shrouded in secrecy.

His appeal has reached the Supreme Court, only there is little written evidence that his case exists. Lower courts sealed all the legal filings, as well as the records of how his case was handled. The proceedings were held in secret.

That is unconstitutional, federal public defender Paul Rashkind of Miami argued in the case from Florida.

The Supreme Court should intervene, Rashkind wrote in an appeal, “to preserve and protect the public’s common-law and First Amendment rights to know, but also to reinforce those rights in a time of increased national suspicion about the free flow of information and debate.”

The administration told justices last month that it did not plan to file a response to the appeal. In a brief notice released Tuesday, the court said it has told the administration to give its side anyway. There is no specific deadline for the reply.

…

Hasn’t shown up on the docket yet.

The Tyranny of the Majority (Party)

Just a quick break from a busy day to note TOMPAINE.com - Criminal Punishment: Rep. David Obey (D-Wisc.) writes, ostensibly to the Chairman of the Subcommittee on Labor-Health and Human Services-Education, of the House Committee on Appropriations (found via Mediajunkie), about a Republian plan to discriminate against the inhabitants of districts represented by Democrats who vote against Republican legislation.

As we have discussed on repeated occasions, the decisions made last spring in the Budget Resolution and in the allocations adopted by the full Appropriations Committee forced the Labor-HHS-Education Subcommittee to cut billions of dollars from the promises made in both the No Child Left Behind Act and the Individuals with Disabilities Education Act. The appropriation bill that you took to the floor in July provided $8 billion less in funding for the No Child Left Behind Act than the amounts authorized for that program only two years ago, and $11.2 billion less than the amount needed to cover 40 percent of the cost of educating all disabled students, a goal widely espoused by Members of Congress on both sides of the aisle. Incredibly, the bill was $1.2 billion below the amount promised for disabled education in the Budget Resolution pushed through the House by your leadership only three weeks before this bill was reported from subcommittee. The appropriation bill that you took to the floor also forced an actual reduction in research to conquer a number of dreaded diseases and it provides fewer funds for the “Meals on Wheels” program than are needed to maintain the current number of meals being served.

It was for these reasons that Democrats in the House regretfully found it necessary to oppose your appropriation measure. As we stated at the time, you produced the best product you could given the limitations imposed on you but we did not agree with those limitations. We specifically did not agree that tax cuts targeted to a small and very well-off segment of the population were more important than meeting the pressing budget shortfalls in our schools, maintaining our level of effort in fighting dreaded diseases or ensuring that our infirm elderly get enough to eat. I think you know our reasons and I think you know that they were heartfelt matters of conscience that gave us no alternative but to vote against the funding levels that you were forced to put forward.

That is why I am so deeply disturbed by the proposal attributed to you in various press accounts. They indicate that you plan to add $1 billion in various types of earmarks to this appropriation bill, with none of those earmarked funds going to the 205 Congressional Districts represented by Democrats. This, according to those accounts, is in retribution for the fact that all Democrats voted against your bill when it was considered on the House Floor.

As you know, I have repeatedly opposed the earmarking of funds in the Labor-HHS-Education bill. In the 22 years that I served on this subcommittee prior to the Republican takeover of the House, there was rarely an earmark of any kind in this bill, and on the rare occasions when earmarks did appear, they were inserted by the Senate over the strong opposition of House Democrats. During that period, I never earmarked one dime of Labor-HHS-Education funding for my district. Significant earmarks did not begin to appear in the Labor-HHS-Bill until after 1995. In the fiscal year 1996 appropriation, after the Republican takeover, $33 million was earmarked. Two years later, earmarks jumped to $97 million and the following year (fiscal year 1999) earmarked Labor-HHS funds jumped to $300 million. In fiscal year 2000 they jumped to $453 million and the following year to $911 million. In fiscal year 2002 they hit $1 billion.

As you know I repeatedly urged the conferees during those years to reduce or eliminate these earmarks for the simple reason that we were leaving too many pressing needs unmet in the bill to be able to fund a panoply of individual member concerns—a significant portion of which clearly failed on any reasonable scale of priorities to rank with teaching children to read or fighting cancer.

The argument against earmarks was made on an almost daily basis by members of your own party throughout the 1980s and early 1990s. While there was virtually no “pork” in the Labor-HHS-Education bill and far less in nearly all of the other appropriation bills than is true now, the alleged “excess of pork” in appropriations measures was exhibit A in the Republican mantra about “forty years of mismanagement.” As Ernest Istook, a member of our subcommittee, was fond of saying during that period, “a pig is a pig, even if he lives at home.”

The argument against diverting funds to lower priority purposes was a strong one even when we were in a period like the late 1990s when the fiscal condition of the federal government was rapidly improving and we were not facing the extreme budgetary constraints that have been placed on this year’s appropriation. It is obviously a much stronger argument now, given the excruciating choices contained in the bill that passed the House last July.

But there is another reason that I find the proposal attributed to you deeply disturbing. What this proposal really translates into is not simply the diversion of money needed to more adequately fund critical national priorities such as reading improvement, but the use of those funds for the creation of a slush fund to intimidate members into voting against adequate funds for programs that they believe are important for the American people. The clear message is that if you support the Republican cuts in education, health research and assistance to seniors, you will get projects to help with your reelection. If you vote your conscience and support more funding for education and health you will get stiffed. This is nothing more than systematic bribery with public funds to enforce the “Robin Hood in reverse” policies of your party.

The 205 Congressional Districts represented by House Democrats contain more than 130 million American taxpayers. To tell those people that they will receive no portion of a $1 billion pot of the nation’s tax dollars because they are represented by a Member of Congress who supports more money for their schools is not only in my judgment unethical but represents a fundamental corruption of the legislative process.

Apparently, we are now too far along in the appropriation process for the current year to have any significant prospect of convincing your leadership to make even moderate improvements in this year’s Labor-HHS-Education bills. But there is one option left that could avoid at least some of the consequences that these bills spell out for our schools, health research and seniors programs. If the money that is planned for all earmarks is instead used to increase support for No Child Left Behind and Individuals with Disabilities Education programs and is used to ensure no cutbacks in health research and feeding programs for seniors, I would be willing to support the bill and urge my colleagues on the Democratic side of the aisle to do the same. This would only be conditioned on the willingness of the House conferees to accept the House-passed instruction that they recede to the Senate amendment on overtime pay.

You and I have been good friends over the years. We share many things including a desire to improve our schools and an abiding concern for the protection of our nation’s parks and wilderness areas. I know that in you heart you realize that this bill does not represent what we should be doing for our schools and I hope that some how we can find a solution that is acceptable to a broad spectrum of the House and the American people, rather than to the narrow majority of House Members that now supports the House-passed bill that clearly does not meet the nation’s needs.

It seems to me that this much worse than the unsavory K-Street plan. I can live with a majority party throwing a little pork to the districts of its marginal members who need re-election help, and maybe even the occasional committee chairman. It’s not nice, I’d rather it didn’t happen, but it doesn’t break the system. On the other hand, if there really is going to be a systematic policy of spending large sums of money only in the districts of Congresspeople who vote Right—well, isn’t it past time we elected some uniters instead of dividers™?

Or else we’ll have to come up with a much, much more robust theory of equal protection than any of the major theories on offer at present, one that puts more power in the hands of courts than just about anyone will be comfortable with.

Novell to Buy SUSE Linux

NOVELL: Novell Announces Agreement to Acquire Leading Enterprise Linux Technology Company SUSE LINUX. (Via Slashdot.)

Ok, this is going to get interesting. Now Novell , which recently acquired one of the best MS Exchange-compatible desktops for linux (Ximian), adds one of the top business-oriented Linux distributions. SUSE is dominant in the European business market, sort of like Redhat is here (although I’m attracted to Mandrake for home use. as it supposedly has the most and easiest drivers). Roll it with Novell’s network software and you have the makings of a super business package I might even be able to sell to the nobody-ever-got-fired-for-buying-Microsoft crowd here.

If only Novell had kept WordPerfect and could release an updated Linux version.

Of Military Voters and the Army Times Poll

One meme getting some play this week is the idea that the military vote may be up for grabs. The best exposition of this I’ve seen is Benjamin Wallace-Wells’s article in the Washington Monthly, Corps Voters, which is well worth a read.

Dramatic confirmation of this hypothesis appears to be found in this Army Times Presidential Poll. When I visited it, the numbers were:

Bush 31%
Clark 22%
Kucinich 16% [Shurley shome mishtake -ed.]
Dean 12%
Edwards 10%
Kerry 4%
Braun 2%
Sharpton 1%
Lieberman < 1%
Gephardt < 1%

If that were right it would mean that almost 70% would choose a Democrat over Bush. And that doesn’t mean the conservative Lieberman, either.

But wait! This is not a scientific poll at all. By all appearances, it’s just a tally of responses from one of those horrible unscientific ‘polls’ on the Army Times homepage. From that page there’s no way to tell whether the ‘poll’ is limited to people from, say, .mil addresses, or whether we all get to vote. Nor is it clear how or whether the web site has anything in place to block repeat voting.

In other words, it’s totally meaningless without some evidence that the voters are only servicepeople, and that they only get to vote once each. And even then, since the results are based on a self-selected sample, they would only be suggestive at best.

[I should maybe explain the “Shurley shome mishtake” comment is reference to a British joke of sorts, originating from the disreputable but funny Private Eye magazine.]

More on Justice Brown

Prof. Bainbridge has a response to my Justice Brown posting. I have a really busy 24 hours coming up, but I’ll try to reply as soon as I can. Other commentary by Eric Muller and Kieran Healy at Crooked Timber, and in the comments to the original Brown item here.

New Afghan Constitution: Well, That Didn't Go Too Well

Prof. Kim Lane Scheppele of the University of Pennsylvania Law School is an expert on new constitutions. She’s not very happy about the new Afghan effort:

An English translation of the proposed constitution of Afghanistan is available [Word .doc].

This constitution will be debated and ratified, if all goes according to plan, in a Constitutional Loya Jirga to be convened in December.

If you want to know more about the process through which it was drafted, the Constitutional Commission’s English language website is very informative. It can be found [here] .

International expert opinions (organized under UN auspices but which, so far as I can tell, were mostly ignored on the larger questions) can be found[here].

In my first reactions, it seems to me that the draft constitution is a substantial step backwards from the 1964 Constitution that brought Afghanistan its first representative democracy. Many of the rights provisions are subject to the qualification that the details will be regulated by law (which makes many basic rights subject to legislative limitation). There is a general equality clause but no specific equality clause for women. The constitution nationalizes natural resources and forbids foreigners from owning land.

The President has sweeping powers. The Parliament’s role is limited to approval or disapproval of state policy that originates with the President. The President appoints the vice president, all of the ministers (though these may be subject to no confidence votes), one-third of the upper house and all of the judges of the Supreme Court (with the latter subject to the approval of the upper house). There is no Constitutional Court, though there is a Human Rights Commission. Constitutional questions can only be taken up by the Supreme Court upon a petition from the government or the courts. There is no public access to constitutional review.

But by far the biggest change in the new constitution is in the role of Islam. In the 1964 constitution, Islamic law was to be used by judges only where there was no positive law on point, as a kind of common law that could be used when statutes and the constitution ran out. Now Islam is a central organizing basis of constitutional life at an equal or perhaps even higher level than the Constitution itself. Political parties may not be formed that conflict with Islam. The educational system shall be designed to be in accord with Islam. The section on the family requires the state to eliminate traditions contrary to Islam. The new constitution does not specify which branch of Islamic law shall be considered authoritative (the old one did), but one can imagine in a country whose most recent government was the Taliban that the view of Islam on offer throughout the political system may not be particularly friendly to international standards of human rights.

While the current president of Afghanistan is a moderate, the current Supreme Court is left over from the Taliban time and they have quite radical views of what Islamic law requires. In fact, in the present legal system, there are almost no judges educated in secular law because all of the universities have been closed since the start of the civil war. Those who are literate (and far less than half of the male population and less than 20% of the female population are literate these days) learned what they know in madrassas which operated in the tribal lands of Pakistan, and this includes the present judges on the Supreme Court.

I must admit to being both disappointed and wary of the draft constitution. It is a constitution that would be easy to abuse. I’d love to hear others’ thoughts on this.

(reprinted from Conlaw list with permission; minor reformatting)

Sets a great precedent for Iraq, right?

Can Senate Intelligence Committee Democrats Go It Alone? Yes, Unless the Rules Are Changed

Since it looks as if there may be an impasse on the Senate Select Committee on Intelligence’s access to White House documents, and the UK’s Daily Telegraph is reporting that Senator Richard Durbin is threatening to invoke a committee rule allowing the Democrats to run a parallel inquiry, I thought I’d try to figure out whether this is possible under the Committee’s Rules of Procedure.

Amazingly, the answer is more or less, ‘Yes, this is possible.’ Technically, though, it’s not a parallel process — just a committee activity organized by interested Senators. Any five members can call a committee meeting even if the Chair doesn’t want them to (Rule 1.5). There are eight Democrats on the committee — including John Edwards (hey, any reporters reading this? Can you ask Edwards whether he’d support Sen. Durban in an effort to hold an independent inquiry? Or do I have to wait until Edwards guests at Lessig’s blog?) And, it only takes five members to initiate an investigation, which gets the staff up and running on the problem. (Rule 6).

More importantly, the Vice Chair — that’s Sen. John D. Rockefeller IV (D-W.Va.) — has the power to issue a subpoena. (Rule 7)

The Committe does have the power, however, to amend its own rules. (Rule 14) Although it’s split 8-8 between Democrats and Republicans, the Chair is a Republican, and I presume he’d have the tie-breaking vote. So if the Democrats really got going on this, the Republicans could stop it — if they could maintain party unity. (Senator Olympia Snowe is one of the committee Republicans.)

Here are the key paragraphs from the Rules of Procedure:

1.3. A special meeting of the Committee may be called at any time upon the written request of five or more members of the Committee filed with the Clerk of the Committee.

1.4. In the case of any meeting of the Committee, other than a regularly scheduled meeting, the Clerk of the Committee shall notify every member of the Committee of the time and place of the meeting and shall give reasonable notice which, except in extraordinary circumstances, shall be at least 24 hours in advance of any meeting held in Washington, D.C. and at least 48 hours in the case of any meeting held outside Washington, D.C.

1.5. If five members of the Committee have made a request in writing to the Chairman to call a meeting of the Committee, and the Chairman fails to call such a meeting within seven calendar days thereafter, including the day on which the written notice is submitted, these members may call a meeting by filing a written notice with the Clerk of the committee who shall promptly notify each member of the Committee in writing of the date and time of the meeting.

Rule 3. Subcommittees

Creation of subcommittees shall be by majority vote of the Committee. Subcommittees shall deal with such legislation and oversight of programs and policies as the Committee may direct. The subcommittees shall be governed by the Rules of the Committee and by such other rules they may adopt which are consistent with the Rules of the Committee.

Rule 4. Reporting of Measures or Recommendations

4.1. No measures or recommendations shall be reported, favorably or unfavorably, from the Committee unless a majority of the Committee is actually present and a majority concur.

4.2. In any case in which the Committee is unable to reach a unanimous decision, separate views or reports may be presented by any member or members of the Committee.

Rule 6. Investigations

No investigation shall be initiated by the Committee unless at least five members of the Committee have specifically requested the Chairman or the Vice Chairman to authorize such an investigation. Authorized investigations may be conducted by members of the Committee and/or designated Committee staff members.

Rule 7. Subpoenas

Subpoenas authorized by the Committee for the attendance of witnesses or the production of memoranda, documents, records or any other material may be issued by the Chairman, the Vice Chairman, …

rule 14. changes in rules

These Rules may be modified, amended, or repealed by the Committee, provided that a notice in writing of the proposed change has been given to each member at least 48 hours prior to the meeting at which action thereon is to be taken.

White House Waffles on Intel Committee Push For Documents

Yesterday I wrote up an item asking whether there was a connection between Democrats on the Senate Intelligence Committee saying they might run their own 9/11 inquiry (with, apparently subpoena power under an obscure Intel committee rule), and an AP report of the White House’s sudden willingness to turn over documents to the committee.

As the story about the Democrats came from a British paper, I noted there was a greater than average chance it might be wrong. British papers don’t always get the details right in US political stories, and are anyway less obsessive about details than US papers. Now, however, it seems as if maybe it was the AP story that is missing part of the picture. Or rather, that the White House had a change of heart (or can’t get its story straight, or has hung a Senator out to dry — either of which is the sign of a sinking ship…).

Today’s AP story, by William C. Mann, says, Senator, U.S. Disagree on Iraq Inquiry says,

The chairman of the Senate Intelligence Committee expects the White House to give the panel access to all materials it sought for its inquiry into prewar information on Iraq. A spokesman for President Bush indicates he shouldn’t be so sure.

Both Sen. Pat Roberts, R-Kan., and White House spokesman Trent Duffy spoke Sunday of “a spirit of cooperation” regarding the documents. That’s where agreement seemed to end.

Roberts said White House aides told committee staff members late Friday of acquiescence, on behalf of the National Security Council, to the committee’s demands. The Pentagon also said it would cooperate, Roberts said on CNN’s “Late Edition.”

The committee had set a deadline of noon last Friday.

While agreeing on a new spirit in relations with the committee, Duffy, with Bush in Crawford, Texas, said he could offer no concrete promises and refused to confirm Roberts’ assertion of agreement on a turnover.

“We’ve had productive conversations about ways we can work with and assist the committee,” Duffy said. “While the committee’s jurisdiction does not cover the White House, we want to be helpful and we will continue to talk to and work with the committee in a spirit of cooperation.”

…

Looks like this one will run for a while.

Justice Janice R. Brown In Her Own Words

The blogosphere is getting very distracted by the Lochner tangent to the Janice Brown confirmation battle. Eric Muller injects some sense into that debate.

You should read the whole thing to get its true flavor. Justice Brown believed that the United States in 2000 was on the brink of collectivism, in the grips of a slave mentality in which the unthinking (led by Marxist academicians, of course) are just itching to surrender their liberty for the opiate of socialism exemplified by the New Deal—the great error in our history. And, oh yes, the family is being destroyed by bureaucrats, or by feminine reliance on the state [please note that Justice Brown clearly doesn’t just mean AFDC, where there might be something to the claim…she means a substantial proportion of the women who voted for Clinton].

But fear not, “it is too soon to despair. … We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.” That would be a new ultra-libertarian, anti-collectivist (defined as “regulation”) dawn, apparently. Which is of course why some folks fixated on the Lochner point.

There does come a point where, however smart they may be, a person is so far outside of the mainstream that they really shouldn’t be a federal judge. This speech persuaded me that Justice Brown is out there, well past that point. And this despite the cool Procol Harum references.

Here are some quotes (minus footnotes)

There are so few true conservatives left in America that we probably should be included on the endangered species list.

…

Writing 50 years ago, F.A. Hayek warned us that a centrally planned economy is “The Road to Serfdom.” He was right, of course; but the intervening years have shown us that there are many other roads to serfdom. In fact, it now appears that human nature is so constituted that, as in the days of empire all roads led to Rome; in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.

It is my thesis today that the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism — has changed not only the meaning of our words, but the meaning of the Constitution, and the character of our people.

…

Ayn Rand similarly attributes the collectivist impulse to what she calls the “tribal view of man.” She notes, “[t]he American philosophy of the Rights of Man was never fully grasped by European intellectuals. Europe’s predominant idea of emancipation consisted of changing the concept of man as a slave to the absolute state embodied by the king, to the concept of man as the slave of the absolute state as embodied by ‘the people’ — i.e., switching from slavery to a tribal chieftain into slavery to the tribe.”

Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism’s virtues, we offer it grudging acceptance, contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental and profound flaw. We conclude instead that its ends are worthy of any sacrifice — including our freedom. Revel notes that Marxism has been “shamed and ridiculed everywhere except American universities” but only after totalitarian systems “reached the limits of their wickedness.”

“Socialism concentrated all the wealth in the hands of an oligarchy in the name of social justice, reduced peoples to misery in the name of shar[ed] resources, to ignorance in the name of science. It created the modern world’s most inegalitarian societies in the name of equality, the most vast network of concentration camps ever built [for] the defense of liberty.”

Revel warns: “The totalitarian mind can reappear in some new and unexpected and seemingly innocuous and indeed virtuous form. [¶]… [I]t … will [probably] put itself forward under the cover of a generous doctrine, humanitarian, inspired by a concern for giving the disadvantaged their fair share, against corruption, and pollution, and ‘exclusion.’”

Of course, given the vision of the American Revolution just outlined, you might think none of that can happen here. I have news for you. It already has. The revolution is over. What started in the 1920’s; became manifest in 1937; was consolidated in the 1960’s; is now either building to a crescendo or getting ready to end with a whimper.

…

Lionel Tiger, in a provocative new book called The Decline of Males, posits a brilliant and disturbing new paradigm. He notes we used to think of a family as a man, a woman, and a child. Now, a remarkable new family pattern has emerged which he labels “bureaugamy.” A new trinity: a woman, a child, and a bureaucrat.” Professor Tiger contends that most, if not all, of the gender gap that elected Bill Clinton to a second term in 1996 is explained by this phenomenon. According to Tiger, women moved in overwhelming numbers to the Democratic party as the party most likely to implement policies and programs which will support these new reproductive strategies.

…

We find ourselves … in a situation that is hopeless but not yet desperate. The arcs of history, culture, philosophy, and science all seem to be converging on this temporal instant. Familiar arrangements are coming apart; valuable things are torn from our hands, snatched away by the decompression of our fragile ark of culture. But, it is too soon to despair. The collapse of the old system may be the crucible of a new vision. We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.

You can also read her tamer — by comparison — Commencement Address to the Columbus School of Law at Catholic University, Keepers of the Faith; Defenders of the Light (May 24, 2003).

The question for you will be whether the regime of freedom which they founded can survive the relentless enmity of the slave mentality.

…

The American Creed has not been forgotten; it has been repudiated. “Historically, American identity has had two primary components: culture and creed.” The former is defined by our heritage from Western Civilization; the latter consists of a set of universal ideas and principles articulated in our founding documents: liberty, equality, democracy, constitutionalism, limited government, and private property. On these principles there once was wide agreement. Indeed, the Creed was hailed by foreign observers, ranging from Alexis de Tocqueville to Gunnar Myrdal, as the “cement in the structure of this great and disparate nation.” As Richard Hofstader notes: “It has been our fate as a nation not to have ideologies but to be one.”

Shorter David Broder

Shorter David Broder:

• The Establishment is ready to declare that Iraq is the New Vietnam. And Bush looks like a deer caught in the headlights.

'Second Front' on the Iraq Intel Inquiry: Bearing Fruit Already?

I wonder if there is any connection between this story — Bush to Furnish All Prewar Iraq Data, Senator Says — and this story: Democrats open second front against Bush in war over Iraqi secrets.

The AP says that the White House has caved, and will turn over all the pre 9/11 documents the Intel committee was asking for. Meanwhile, the Telegraph reports that the Intel Committee Democrats will invoke an unknown-to-me rule and run their own official inquiry. Which given the history of bipartisanship on the Intel Committee is pretty amazing if true.

I see three possibilities: (1) The Telegraph is wrong — wouldn’t be the first time they blew some Senator’s remark out of proportion; (2) The Democrat’s threat to run “a second, ‘independent’ investigation into the role of the White House and the Pentagon in processing pre-war intelligence on Iraq” was a bargaining chip, and it pried loose the documents; (3) It’s a coincidence, and the Democrats are going ahead with their independent inquiry.

Here’s the really intriguing part of the Telegraph story,

[quoting Sen. Richard Durbin] “If the Republican leadership of the Senate Intelligence Committee is determined to protect the administration at any cost, we’ll do the investigative job on our own.”

The inquiry, under a rule never evoked before, would have legal powers to demand documents and summon witnesses from within the administration, potentially leading to high-ranking confrontations with top Bush officials.

I never heard of such a rule. If it really exists, can the committee rescind it to block the Democrats if they want to go it alone?

[Fill In The Blank] Should Run Our Paper Because...

How do you define the criteria for selecting who should run a law school newspaper? Although it has potential for both fun and service, editing the monthly, or maybe tri-weekly, paper for the school doesn’t seem to be a dream job for the average law student, perhaps because does less for the resume than does a genuinely legal job. It’s a fair amount of work, and what there is in the way of financial compensation isn’t much for anyone except maybe the editor in chief, who gets a partial tuition waiver.

I have to write some up some criteria we can select a new staff for the law school newspaper. Why me? Because intelligent academic administrators have a way of dealing with faculty who complain about something: they make them fix it.

Since time immemorial — well, since before I got here anyway — the law school has a student newspaper. But not a very good one. Speaking as a former student journalist, and the brother of a journalist gone bad (he’s a bigshot editor now), I can say that when I got here more than ten years ago it was very bad, and has been going downhill ever since. In fact, a colleague in the School of Communications once told me he used certain issues in a class hour devoted to ‘What not to do’ in journalism.

The problems were legion: lousy writing, lack of editorial standards, one-sided reporting, erratic coverage, poor spelling and grammar, blurry pictures, sexist columnists, and thinly veiled personal attacks on other students. Despite all this, the faculty hesitated to intervene. Although we are private university, and the First Amendment does not apply to us, we didn’t want to do anything that even came close even to sounding like censoring the newspaper. When, however, the staff selected an editor who was also a member of the student government, the students began to complain. And, conveniently, the newspaper’s by-laws prohibited this conflict. Still the administration hesitated. But, when the new editor picked to run the paper for this year had the same conflict of interest, this time the administration stepped in. It asked the editor to pick one job or the other. He chose the student government over the newspaper, and the paper’s staff, disorganized, did not select a successor in a timely way.

The administration chose to see this as abandonment, and now we have to have a fair process to pick a new newspaper staff. Students will be asked to put together a staff team and ‘bid’ for control of the resources we devote the paper (money and office space, mainly). The administration produced a lengthy ‘Request For Proposals’ document complete with a great deal of what seemed to me to be unnecessary bureaucratic mumbo-jumbo (must a newspaper have a Mission Statement? Can it realistically predict the % of the paper that will be devoted to letters to the editor? And so on.) I thought it was all a bit much, and that lots of it didn’t have much to do with journalism.

Well, I can’t say the administration didn’t listen: they asked me to produce a new RFP. I’d like it short, but we need to ask enough questions to be able to distinguish meaningfully among proposalas if there is more than one.

So here are the criteria I have so far:

For the group as a whole
Planned scope and types of coverage (sample story ideas?)
Frequency of publication
A copy of the organization’s by-laws, including
- Conflicts of Interest policy
- Method of selecting future staff and editors

For each proposed staff member:
Name
Role he/she will play on the paper.
Relevant journalism or business experience
Numbers of hours per week the person will commit to spending on the newspaper

What am I missing?

The Secret Attack on the Right to an Open Court

The Christian Science Monitor reports that the Supreme Court will soon consider whether to review a lower court procedure that allowed the government to conduct a secret habeas corpus proceeding. Not only was the trial closed to the public, but all information about it was kept off the public record. Officially, it was a non-event.

A secret trial. A SECRET TRIAL. In the US. IN THE USA. Ok. Ok. I refuse to panic until the Supreme Court approves this. That means I have a few weeks at least.

If you had asked me two years ago, I would have said that secret trials were impossible in the USA. While there are special procedures for judges to consider especially sensitive evidence in camera these have historically been designed as a way of deciding whether the evidence belongs in open court; if the judges decide the evidence is important, the government must either make it public, or forgo using it — which, if the evidence is exculpatory, means forgoing the prosecution.

The idea that the government would attempt to hold entire secret star chamber-like trials, closed to the public, trials whose very existence was a secret, is repugnant to this nations’s traditions and fundamental values. And if history teaches us anything about abuses of power, it is that secret trials are dangerous. This is never more true than in a habeas corpus action, the ‘Great Writ’ (the “highest safeguard of liberty,” Smith v. Bennett, 365 U.S. 708, 712 (1961)) which is designed to force the government to justify its detention of a person.

The government’s — successful! — attempt to inaugurate a regime of secret trials and secret detentions is a really lousy signal about the state of panic among our ruling class — and about the brittle state of our liberties. What really boggles the mind is that two courts have allowed this to happen — now only the Supreme Court stands between us and a country with secret trials into which suspects (recall - they’re innocent until proven guilty!) just vanish into the system.

Before you say ‘terrorism is different’ or ‘we’re at war now’, note that the government says they want to use this tactic in drug cases too. Worry. Really worry about this one. We’re one step closer to the day when this might not be a joke.

And in fact, the subject of this secret trial isn’t some super-ninja terrorist from beyond the deep. He’s an Algerian waiter. And he is obviously not that dangerous, since he’s been out on a $10,000 bond since March 2002.

Secret 9/11 case before high court| By Warren Richey | Staff writer of The Christian Science Monitor

MIAMI - It’s the case that doesn’t exist. Even though two different federal courts have conducted hearings and issued rulings, there has been no public record of any action. No documents are available. No files. No lawyer is allowed to speak about it. Period.

Yet this seemingly phantom case does exist - and is now headed to the US Supreme Court in what could produce a significant test of a question as old as the Star Chamber, abolished in 17th-century England: How far should a policy of total secrecy extend into a system of justice?

…

Yet this highly unusual petition to the high court arising from a Miami case brings into sharp focus the tension between America’s long tradition of open courts and the need for security in times of national peril. At issue is whether certain cases may be conducted entirely behind closed doors under a secret arrangement among prosecutors, judges, and docket clerks.

While secret trial tactics have reportedly been used by federal prosecutors to shield cooperating drug dealers, it’s unclear whether the high court has ever directly confronted the issue. But that may change if they take up MKB v. Warden (No. 03-6747).

What’s known about the case

This is among the first of the post-Sept. 11 terrorism cases to wend its way to the nation’s highest tribunal. There was no public record of its existence, however, until the appeal was filed with the clerk of the US Supreme Court.

A federal judge and a three-judge federal appeals-court panel have conducted hearings and issued rulings. Yet lawyers and court personnel have been ordered to remain silent.

“The entire dockets for this case and appeal, every entry on them, are maintained privately, under seal, unavailable to the public,” says a partially censored 27-page petition asking the high court to hear the case. “In the court of appeals, not just the filed documents and docket sheet are sealed from public view, but also hidden is the essential fact that a legal proceeding exists.”

Despite the heavy secrecy, a brief docketing error led to a newspaper report identifying MKB by name in March. The report said MKB is an Algerian waiter in south Florida who was detained by immigration authorities and questioned by the FBI.

MKB’s legal status remains unclear, but it appears unlikely from court documents that he is connected in any way to terrorism. He has been free since March 2002 on a $10,000 bond.

…the Justice Department has acknowledged that at least nine criminal cases related to the Sept. 11 investigation were being cloaked in total secrecy.

MKB v. Warden is the first indication that the Justice Department is extending its total secrecy policy to proceedings in federal courts dealing with habeas corpus - that is, an individual’s right to force the government to justify his or her detention.

The case offers the Supreme Court an opportunity for the first time to spell out whether such secret judicial proceedings violate constitutional protections. It may also offer the first insight into how much deference a majority of justices is willing to grant the government in areas where the war on terrorism may tread upon fundamental American freedoms.

…

In her petition to the court, Miami federal public defender Kathleen Williams says the judges’ actions authorizing the secrecy without any public notice, public hearings, or public findings amount to “an abuse of discretion” that requires corrective action by the justices.

“This habeas corpus case has been heard, appealed, and decided in complete secrecy,” Ms. Williams says in her petition.

…

Justice Department officials have defended the blanket secrecy policy, saying that public hearings and public dockets would undermine efforts to recruit detainees as undercover operatives to infiltrate Al Qaeda cells in the US. According to press reports, similar secret trial tactics have been used by federal prosecutors to shield cooperating drug dealers from mention in public court documents that might blow their cover and end their use as operatives in ongoing undercover narcotics sting operations.

Until I heard about this, I would have said that the Padilla case was the most important civil liberties case alive today. But of course, I hadn’t heard of MKB’s case, had I? Now I guess it’s a draw.

If the Supreme Court does not rule this unconstitutional, we must demand that Congress ban the practice of secret trials at once. Not because a reign of tyranny is certain to follow. But because one of the important protections which makes that idea seem laughable will have been pulled away.

[Accidentally posted originally with the wrong title. Title corrected.]