Discourse.net

Padilla Found Competent to Stand Trial

Judge Cooke decided today that Padilla is mentally competent to stand trial, but warned that this decision is without prejudice to any future ruling on Padilla's claims of Outrageous Government Conduct:

A federal judge decided Wednesday that alleged al-Qaida operative Jose Padilla is mentally fit to stand trial on terrorism support charges, despite his attorneys' insistence that he is unable to help them prepare a defense.

Padilla was in court when U.S. District Judge Marcia Cooke announced her decision, but he showed no reaction.

“This defendant clearly has the capacity to assist his attorneys,'' Cooke said just hours after she finished a four days of competency hearings.

News You May Have Missed Elsewhere

U.S. Dollar Drops Against Counterfeit U.S. Dollar
February 25, 2007

NEW YORK-At the close of trading Monday, the U.S. dollar dipped to a record low of $.60 against the counterfeit U.S. dollar, which also outpaced the dollar against the euro and the yen.

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Supreme Court Gives Gore's Oscar to Bush

Stunning Reversal for Former Veep

Just days after former Vice President Al Gore received an Academy Award for his global warming documentary “An Inconvenient Truth,” the United States Supreme Court handed Mr. Gore a stunning reversal, stripping him of his Oscar and awarding it to President George W. Bush instead.

For Mr. Gore, who basked in the adulation of his Hollywood audience Sunday night, the high court's decision to give his Oscar to President Bush was a cruel twist of fate, to say the least.

More on Rudy Giuliani

Someone has made a very nice video about what Rudy Giuliani was saying before he decided to run for President. I gather he says somewhat different things now.

What's interesting is that some parts of the GOP are so afraid they are going to get hammered in the general election, they may be prepared to overlook all this. But only some.

Padilla News

The government subjected Padilla to years of sensory deprivation, blocked most human contact, blackened his windows so he'd have no natural light and no idea of the passage of time (no clock, no radio), and made him sleep on a steel bed with no mattress. But they didn't mistreat him, and the fact he smiled when he saw a prison psychiatrist through a small metal opening in his door proves he's able to interact with people enough to participate in his defense. The contrary opinion by his psychiatrist is due to the fact that Padilla had to wear handcuffs during that interview due to prison rules, so there would be no way that anyone but the staff shrink could actually evaluate what he's really like.

That seems to be the essence of yesterday's testimony.

Washington Post, Padilla Was Deprived, Not Abused, Court Told:

During his 3 1/2 -year detention as an “enemy combatant,” accused al-Qaeda operative Jose Padilla was at various times deprived of a clock, windows and a Koran, and forced to sleep on a metal bed frame without a mattress, according to testimony Tuesday from an official at the Navy brig where he was held in Charleston, S.C.

The account of Sanford E. Seymour, the brig's technical director, was narrow in scope and offered only a glimpse of Padilla's incarceration, which Padilla and his attorneys have said included torture that renders him psychologically unfit to stand trial.

Limited by a court ruling to what he had discussed with a psychologist evaluating Padilla's competence for trial, Seymour's testimony was sketchy but ran contrary to some of Padilla's most serious allegations.

“I told him I knew of no physical abuse,” Seymour testified.

New York Times, Jailers Testify About Padilla’s Confinement:

As Jose Padilla dropped his head and grew still, a senior official from the naval brig in Charleston, S.C., testified on Tuesday in federal court here that he had twice observed Mr. Padilla weeping in the electronically monitored cell where the military detained him for three years and eight months.

The brig’s technical director, Sanford E. Seymour, also said that Mr. Padilla, an American citizen who was designated an enemy combatant in 2002, sometimes slept on a steel bunk without a mattress, that the windows in his 80-square-foot cell were blackened and that brig employees covered up their nametags around him.

Mr. Seymour said that Mr. Padilla, a Muslim, occasionally visited with an imam and that his Koran was taken from him periodically; that he sometimes went outside to shoot baskets or sunbathe; and that when Mr. Padilla believed he had been administered LSD, it was really a flu shot.

These scattershot revelations, elicited by Mr. Padilla’s lawyers in a hearing of sharply limited scope, did not add up to a comprehensive portrait of Mr. Padilla’s time in the brig. But they were nonetheless significant, marking the first time Mr. Padilla’s military jailers were forced to speak publicly about the conditions of his secretive confinement without charges. …

… Bureau of Prisons psychologist, Dr. Buigas, disagreed with the diagnosis of post-traumatic stress disorder. He said Dr. Zapf’s testing was invalidated by the fact that Mr. Padilla was handcuffed during the tests, a condition imposed on Dr. Zapf by prison officials.

The Times article also notes a debate over the government's attempt to introduce what it says was evidence Padilla is shamming:

Prosecutors tried to introduce into evidence what they said was an internal document from Al Qaeda that coached operatives to be obstructionist if captured, to avoid revealing information and to make a claim of torture even if no mistreatment had occurred. This document, which they referred to as the “Manchester manual” because it was found several years ago in Manchester, England, was what guided Mr. Padilla, they said.

“Don’t I have to have some evidence that Mr. Padilla was aware of this document and studied it?” Judge Cooke asked prosecutors.

In declining to admit the manual into evidence, she added that the manual would have converted the competency hearing into a debate over whether the defendant had been tortured in the brig.

For more on the “Manchester manual” see Dick Destiny's blog and a text of the Manchester manual at Cryptome.

Grimmelmann on 'SSRN Considered Harmful'

If you are interested in academic legal scholarship, please reaed James Grimmelmann's SSRN Considered Harmful.

You can get it from … SSRN … which is part of the point, as explained here.

Two Weeks is Forever in PR

If a week is a long time in politics, then two weeks must be forever in PR.

New Evidence Clouds U.S. Case against Iran: Two weeks ago, the Bush administration organized an intelligence briefing for journalists in Iraq to demonstrate that Iran was providing weapons to Iraqi insurgents. According to the anonymous briefers, the weapons — particularly explosively formed penetrators or E.F.P.s — were manufactured in Iran and provided to insurgents by the Quds Force — a fact that meant direction for the operation was “coming from the highest levels of the Iranian government.”

Well. A raid in southern Iraq on Saturday seems to have complicated the case.

It seems the Iraqis were making the stuff that the US had been saying could only have come from IraqIran. And from the markings on the boxes, it seems most of the key parts came straight from non-Iranian factories.

I hope the Times and Post put this on their front pages with the same prominence they gave the scare stories two weeks ago.

We Have Great Students (and Alumni)

One of our recent LL.M. graduates, and a former student of mine, Dr. Daniel Schnabl, LL.M., has published a book with the imposing title of Die Anhörungsrüge nach § 321a ZPO. Gewährleistung von Verfahrensgrundrechten durch die Fachgerichte which apparently translates as “The Appeal for the Right to Be Heard According to § 321a of the German Code of Civil Procedure. The Guarantee of Basic Procedural Rights in the Courts.”

Here's the blurb:

The right to be heard is one of the essential guarantees in court proceedings granted by Article 103 I of the German Basic Law. Daniel Schnabl examines the new Section 321a, which was changed as of January 1, 2005 and provides an additional safeguard for the right to be heard in the German Code of Civil Procedure and in other procedural codes. Thus the significance of this topic transcends the code of civil procedure. The author gives detailed answers to legal and constitutional issues which are related to this new regulation. In conclusion, he examines whether or not the current version of Section 321a of the German Code of Civil Procedure is compatible with the rule of real legal protection which ensues from the general right to have recourse to a court. The author received an award from the “Dr. Feldbausch-Stiftung” for this thesis.

I'm sure it's just the start of a glittering academic career.

Random Fact

Rudy Giuliani hates ferrets, and ferret-owners too. (Click for a link to the amazing audio clip.)

What a Strange Question

The Law Blog Question of the Day: What’s the deal with lawyers who wear bow ties?

What kind of a question is that?

Bow ties, in addition to being natty, take less storage space in your closet. Plus it is very hard to spill soup on them, reducing cleaning costs (and, given that silk is so hard to clean, reducing the risk of ruining a favorite tie).

And Justice Stevens wears them.

What more do you need to know?

The only times I wear one of those long flappy things are for funerals (bow ties are too cheerful for funerals) and before trial courts (juries, and even trial court judges may have unpredictable reactions).

All Hail the Conservapedia

Read all about the Conservapedia. But not while drinking hot coffee.

PS. As far as I can tell the Conservapedia is not intended as a joke, although some commentators have been less than respectful.

What the Law of the Sea Teaches Us About the Regulation of the Information Ocean

On Friday I gave a short talk at a conference organized to honor my colleague Bernard Oxman, who is taking up one of our very rare chairs here at UM law in this, his thirtieth year as a UM professor. (Unlike most law schools, we don't have a tradition of having chaired professorships. That may slowly be changing, fundraising willing.)

Every panelist was asked to respond to an essay Bernie wrote for the centennial volume of the American Journal of International Law. Unfortunately, Bernie's essay was about the Law of the Sea, a subject in which he is a (the?) leading expert, but about which my ignorance is vast and deep.

Thus, the title of this essay, “What the Law of the Sea Teaches Us About the Regulation of the Information Ocean.”

The audience was polite, even kind, about my remarks, so I'm posting the text (without footnotes) here. I'd sort of like to publish the footnoted version somewhere, as it tickles me to have written, however tangentially, about the law of the sea, but I have no idea where to send this.

What the Law of the Sea Teaches Us About the Regulation of the Information Ocean

By A. Michael Froomkin
University of Miami School of Law

When it comes to the Law of the Sea, I am a fish out of water: I swim in different, virtual, oceans. Thus, the question I will explore today at this event honoring Professor Bernard Oxman is one where I have the least chance of drowning: I want to consider to what extent Professor Oxman's eloquent paper charting the hazards to navigation in the future development of the Law of the Sea provides a useful intellectual cartography for those of us who sail the Information Ocean.

The Territorial Temptation: A Siren Song At Sea, 100 Am. J. Int'l L. 830 (2006), contrasts the land-based regime of post-Westphalian international law, a system that from the start was organized around principles of territoriality — or should one say, territorial-based sovereignties? — with the less imperfect law of the sea. Where on land we find many examples of multilateralism yoked to serve naked self-interest — poorly understood? — at sea, for a long period, we find instead the 'progressive triumph', a regime of mare liberum, one that at least until recently was dominated by what Prof. Oxman terms “enlightened self-interest: a rational conclusion that the interests of states in unrestricted access to the rest of the world outweighed their interests in restricting the access of others at sea.”

Prof. Oxman's article is no Jeremiad, and he no Ancient Mariner, but it is nonetheless a cautionary tale: he notes that rules motivated by a surrender to the same 'territorial temptation' that has for so long ruled on land now increasingly extend into the other 71% of the Earth, running from the sea-bed to its surface. Prof. Oxman warns us that this expansion, plus a focus on short-term goals at the expense of long-run systemic values, threatens to drain the virtues of the law of the sea and leave it looking like … land.

Thus, Prof. Oxman's concluding warning:

***
There is a great deal in that warning and in the history leading up to it, that resonates with the current state of regulation of the Internet. Like the mare liberum, the Internet in its early days was wide-open and in practice largely unregulated; like the contemporary Law of the Sea, today's Internet faces a series of national and supra-national regulatory initiatives that seek in various ways, for reasons both fair and foul, to re-impose the control of territorial sovereignties over something that they first did not well control, and now see how to control only too well.

In what may soon be seen as a departed Golden Age, packets were free to roam from port to port; users could exchange information at will. But, just like mariners in the age of sail contemplating ocean journeys, would-be internauts faced substantial barriers to entry: only 30 years ago, internet access still required access to a mainframe somewhere and thus tended to be limited to scientists and academics, and the data moved at a mere trickle as machines mostly communicated via modems with baud speeds we sneer at today. The introduction of the (relatively) affordable personal computer, increases in processing and modem speed, and the invention of a graphical interface for unmediated one-to-many communication, what we now call the World Wide Web, all combined to bring the wonders of internet access and communication to the masses. The rest is surfing, and will some day be history.

Discussions of Internet regulation are too frequently captive of terrestrial metaphors. For example, the early adopters wrote of the “information super-highway” and of “long pipes” (but now mock the late-comers such as Senator Stevens who talk “about a series of tubes”). In this vision, packets, the basic unit of internet data transport, are analogized to cars negotiating the road system; like a traveler facing a long journey, there are in theory a large number of possible routes to one's destination. And like the roads facing that traveler, there are some routes that are both quicker and more traveled than others.

Hypnotized by the world wide web, we talk now of “cyberspace” and exchange articles as to whether the very idea of “place” is a handy simplification, an obfuscation, or a reification. For example, some have argued that the Internet is, or is usefully understood as, or might profitably be mythologized as, its own jurisdiction, with its own set of laws, rules created by the users in a truly bottom-up democratic manner. The essentialist reaction spurns these utopian visions as both fantastic and mistaken. One ought not, they say, to be able to opt out of the rules that bind our neighbors — territorial rules — because one uses a computer, any more than because one used a telephone, a car, or a spatula. And states, spurned as territorial dinosaurs by the digerati, who cast themselves as the small nimble mammals of a changed ecology, are in this counter-utopian vision, repositories and guarantors of traditional community values.

To the intellectual and especially practical challenge posed by modem-wielding libertarians and dreamers, the defenders of the terrestrial state's authority and legitimacy cast it as the guardian of our traditional values, and the defender of morality, and of the weak. So, for example, when France seeks to use its courts to prohibit (somewhat) US-based Yahoo! from selling Nazi memorabilia online in French, to French residents, the defenders of the state see this as a return to business as usual, and on the whole a salutary moment.

Whether or not triumphalism is justified, the positive story told by Joel Reidenberg, and by Jack Goldsmith & Tim Wu is surely correct: The empire has begun to strike back. States are asserting themselves to regulate the Internet as never before, both individually and in concert. The movement in the direction of business-as-ususal means that Nazi items are sold in English for dollars rather than in French for Euros — a primarily symbolic victory but one whose symbolism may actually matter. Unfortunately, it also means that in China a Google search for many terms disfavored by the authorities will result in a much less rich result than it would if conducted here, or even an error message that gives no hint of the real reasons for the search's failure. And the movement towards business as usual also means a movement towards business, as governments, working through international organizations, seek first to build an infrastructure of surveillance and enforcement to police existing intellectual property rights (and not-so-incidentally make whole new realms of data available to law enforcement) and second, to propertize and assign new categories of rights to content providers or intermediaries at the expense of consumers.

Yes, the same tide of 'territorial temptation' which covers the land now and threatens the Law of the Sea also menaces cyberspace.

The root causes of these two dangers have much in common: just as the Internet is one of the most exciting and even defining technological developments of our time, so too the sailing ship was a crowning technological achievement of its day. A tall ship is a highly complex machine that requires enormous organization and technical expertise to run properly. In broad terms the same is true of a complex network. Both depend on an extensive external infrastructure, be they boatwrights and ship's chandlers or fab labs and electrical and telephone networks. (A critical difference, however, is that the tall ship required a well-drilled team to work properly. In a good network the work tends to be more distributed and in a really good network it may be more fault-tolerant as well.)

Whatever the differences, note this critical similarity: government attempts to regulate in both spaces tracked technological advances. Before the three-mile rule it was a commonplace that the territorial limits of sovereignty were akin to the range of cannon shot — a technological constraint. As first shipping, then air, then sub-surface, transport improved, the state's ambitions grew with them. So too in virtual spaces. It has not taken long for the State — and for states in concert — to seek to (re)extend their reach to new activities enabled by new technologies. The are, in substantial part, regulating now because now is when they can.

So let us go with the flow and see how well the aquatic metaphor guides our navigation around the shoals of the territorial temptation's encroachment on the Information Ocean.

I. Similarities

The mare liberum was characterized by freedom of navigation. Freedom to go where one would did not necessarily mean freedom to trade, much less freedom to propagandize or proselytize, as territorial law took hold again once one reached port. But the freedom of the seas meant trade — and not just commerce, but trade in ideas as well.

The analogy to the Internet is appealing. Anyone familiar with the World Wide Web will see the surface similarity to a web surfer's freedom to navigate to any site, anywhere. True, an average web surfer in the US seeking what we call high-speed access is somewhat limited in that she has at best two choices, monopoly DLS and monopoly cable, but in the day there were probably only so many ships in port. And if the modern 'net surfer is likely to pass certain chokepoints on the way to foreign content, well the seas are well known for their straights and narrows also.

And that is only with yesterday's technology. Today, and even more tomorrow, Internet access will become wireless and untethered, whether via cell phones, Blackberries, or laptops connected to wireless clouds. What is more, plans are afoot to extend the reach of open access points by converting every participating wireless laptop into a repeater. By replicating the packet-switching architecture at a higher level we will reduce the effectiveness of endpoint and last-mile chokepoints. Wireless access may yet become nearly ubiquitous and too cheap to meter (and with voice-over-IP (VOIP), may take wireless telephony with it). Meanwhile enthusiasts of electronic democracy and popular empowerment offer a vision sharply at odds with that of Cassandras of globalization for whom the Internet provides yet another occasion for decision-making authority to seep away towards relatively undemocratic trans-national bodies such as ICANN, or perhaps the ITU or even, horror of horrors, the United Nations.

One need not adopt a Utopian vision in order to accept that the freedom of navigation online also means an enormous traffic in ideas both domestically and across borders. It has called forward innovations in user-to-user and one-to-many technologies ranging from blogs to YouTube, from Kazaa to MySpace. The ease of trading and selling digital content has had other consequences. It has fostered new marketing practices such as shareware and the endlessly upgraded annual version. And this flourishing of creativity has had its parallel in legal innovation, including the Copyleft or Creative Commons movement — an attempt to standardize license terms in a way that encourages sharing and attribution.

Equally innovative, albeit in a different way, are the attempts to redefine the purchase of digital property as a mere license — and to define the terms of that license in ways that favor the content-provider. EULAs attempt to undo the first sale doctrine, to prevent the purchaser from sharing the content, sometimes even from using it to criticize the manufacturer. And of course the EULAs attempt to impose a wholly different regime of rights and remedies from those consumers ordinarily expect when buying stuff. (Here, I fear, the analogy — if there is one — would be to employers' encounters with admiralty law, not to the Law of the Sea.)

Freedom of navigation online also means a substantial traffic in commerce — e-commerce as we now call it — although estimates of the actual dollar value (and percentage of consumer spending in general) vary widely. Whatever the actual amount today, everyone agrees it will be greater next year. Some even predict the growth of a new economy in which intermediaries are replaced by huge open networks of buyers and sellers trading with e-cash on anonymous electronic exchanges, engaging in regulatory arbitrage — and evading their taxes.

Along with all these developments come new evils, or old evils in new packages, notably the trade in illicit content. In the United States that means pornography, gambling, and malware — the modern equivalents perhaps of the bacteria and viruses spread by sea-borne travelers, sometimes with such disastrous results for indigenous populations. We've seen nothing quite that bad online yet, although the huge volumes of spam delivered by thousands of zombie computers harnessed to form botnets now threaten the ecology of email. Perhaps the best oceanic analogy for the modern spam, however, is cross-border pollution, and as we shall see, the analogy extends to the methods being advocated to control it as well.

And, of course, there's “Piracy”. On the high seas, piracy was the classic offense against the laws of nations. On the Internet, the term “piracy” has been, well, pirated, to mean making unlicensed copies of copyrighted works. And the content industries have made an enormous effort on multiple fronts to preserve their business models. Where once the Navy patrolled the seas, now the copyright police patrol third-world bazaars, online markets, and file sharing networks. They file lawsuits against file-sharing software creators, teenaged codebreakers who find ways to decrypt DVDs, middlemen providing matching services for file sharers, and even thousands of end-users. The content industries have also leaned heavily on the designers of hardware and the definers of standards to build “trusted computers” and “digital rights management” systems designed to limit what users can do with their computers, to put roadblocks on the unsanctioned exchange of information.

I would be remiss if I did not note some places where my extended analogy founders.

• The Internet standards process requires even more standardization than sea did/does. Ships could have different designs, so long as they floated. Internet enabling hardware takes many forms, but if your devices don't adhere to some basic standards, they are not going to be able to communicate with much.


• Packets are not like fish. They are artificial, and in the normal case do not reproduce. More to the point, if you are on the outside of the Great Firewall of China — and, for now, even on the inside if you are skilled — you can route around blockages much more successfully than schools of fish and pods of dolphins can evade driftnets. Unlike driftnets, the effects of censorship need not be felt abroad, except as a loss of readership.


• And packets are not like ships. The freedom of navigation was used to go places. With the Internet, much as we like to talk about “going” to a web site, the inescapable fact is that you don't actually move. That said, your data can move, and indeed can in some cases reside entirely offshore, making datahavens something comparable to the modern flag of convenience.

So, to recap, there are many similarities between the sea's effect on trade and commerce, what Chief Justice Marshall's era called intercourse, and the modern Information Ocean's effects on commerce and the exchange of ideas. And in both cases a relaxed, standardized, but not anarchic, international regime enabled (or at least enhanced) these benefits. And, in both cases, some of the benefits are threatened by the possible imposition of a more nationalistic and more controlling legal regime, a regime that shows every sign of giving into not just the territorial temptation but temptation in general.

II. Internet Regulation Dangers

The move to regulate the Internet threatens not only to subject it to the same rules that apply to other, meatspace, activities, but in some cases to subject it to more stringent rules; these in turn are often designed not only to regulate the Internet but to control various offline practices ranging from pedophillia and money laundering to parody and dissidence.

As with the law of the sea, the regulatory impulse proceeds on multiple fronts. There is of course national regulation, rapidly extending its reach to e-commerce, to online libel, and especially to digital property. The digital property issues appear in multiple forms and with every type of intellectual property. This is not the place to list them all; they include the regulation of online content — in trademark everyitng from passing off, to old fashioned infringement, and on to tarnishment. Only a few of these — new and exotic forms of conduct prohibited as 'initial interest confusion' and the regulation of domain names — have been particularly controversial. The story regarding copyright is more complex still, with the primary controversies relating to data exchanged online as opposed to online display, although even here the overenthusiastic use of the DMCA's takedown provisions increasingly prove troublesome, as does an epidemic of craven self-policing in excess of anything the law requires.

The urge to regulate has many sources. In the US, it is in part a reaction to the use of the Internet as a tool of regulatory arbitrage in which Americans evade local rules banning pornography, gambling, or the importation of cheap Canadian medicines. Another part of the urge to regulate, not limited to the US, reacts to the danger that computer-mediated communications, whether anonymous, encrypted, or hidden in plain sight, may enable terrorism or otherwise undermine national security. And, of course, many nations the urge to control and regulate is part of a larger program of control and even repression. The recent contretemps about Google acceding to China's demands that 'sensitive' searches be sanitized is only the most publicized of a series of attempts in China, Singapore, Saudi Arabia and many other countries to clamp down on the subversive effect of such a great freedom to communicate.

For those of us with the good fortune to live under less repressive governments, the greatest dangers, however, are not in national legislation, but at the international level. First, the US has entered into a series of bilateral agreements, mostly with smaller economies, in which the US has begun to impose IP regulatory regimes on its trading partners that are more stringent than those it imposes on itself. Even when treaties do not change existing rules, they lock them in and thus place weighty obstacles in the way of democratic re-examination of their provisions. Some have even suggested that the current US administration is embarking on a strategy to lock in our current practices in this manner in order to prevent their repeal by its successors.

Multilateral processes are also being harnessed to this goal. Negotiations on The Hague Convention on Jurisdiction, for example, almost foundered on its applicability to e-commerce, to other online activities, and on the protection that would be given to various idiosyncratic sui generis IP rights.

In addition to the traditional multilateral processes, Internet regulation enjoys, if that's the word, a hybrid semi-private regulator called ICANN, which controls the domain name system. ICANN's technical control makes its decisions almost instantly enforceable. So far that power has been relatively sparingly, primarily to create new rights for incumbent trademark holders in the domain name system, and to prevent the creation of interesting new top-level domains that might become a source of heartburn for incumbent service providers or for large trademark interests who fear an increase in both infringement and especially monitoring costs. This is not the place for the complex details, but it is relevant to remark that the latest proposals on domain name policy to emanate from ICANN give each participating national governments unlimited rights to veto new TLD names whose semantic content (e.g. “Tibet”) they find troubling for any reason.

Currently, content providers are mounting a strong effort to add to what critics call 'the copyright grab' or the 'digital enclosure' movement at the ongoing negotiations over the WIPO broadcast treaty. Due to the heavy-handed efforts by the chair to define the agenda, the conference has been focused on creating new rights for broadcasters, who it is proposed would be given the right to prevent the retransmission of otherwise public domain content that they transmitted. The effect on the Internet — which is where most of that retransmission happens, often after important transformation and the creation of exciting if oft satirical derivative works — would be significant.

Most serious of all are the multi-lateral efforts to require internet intermediaries to record most or all of what their customers do online and to keep the records available for months or years in case police or intelligence agencies should later wish to inspect them. Governments have come to understand that technologies of online surveillance and monitoring require wide dispersion to be effective or their targets will move their operations offshore.

The initial move towards a surveillance regime, widely believed to have been orchestrated by the FBI (and/or the NSA) was through the Council of Europe's Cybercrime Convention. Initial proposals to create a duty to monitor at the request of a foreign power were heavily watered down after an outcry by civil liberties organizations in the US and Europe. The final draft created mechanisms for increased cooperation between law enforcement agencies but did not require one government to, for example, cooperate in the monitoring of foreign dissidents visiting or sheltering on its territory.

That victory was short-lived. The European Union recently adopted a far more comprehensive rule, one justified as necessary to help fight terrorism and organized crime, that requires ISPs to keep records of what their clients do online. This directive will take effect this August, although member states may postpone compliance until March 2009. Under the terms of the so-called Data Retention Directive, Internet Service Providers must retain for up to two years the date, destination, and duration of their customers' communications — and made these available to law enforcement authorities. US Attorney General Alberto Gonzales recently proposed that the US adopt a similar rule, although the bill seems to have little chance of passage in the House — this year.

It can be seen from this gale-speed summary that like the Law of the Sea, there are proposals afoot for the regulation of the Internet that threaten not merely to tame it, but to change the overall character of both the regulatory environment and the thing itself. That said, there does appear to be one important difference from the Oxman conception of the recent evolution of the law of the sea. By and large the private actors, and especially the NGOs, are the heros of the internet story; one gathers that Prof. Oxman perhaps sees them playing a more ambiguous role at sea. In the Internet context, the truly dangerous parties clearly are the governments, which are reclaiming the intellectual agenda as a prelude to colluding, in the name of security, against the privacy and in some cases freedom of their citizens.

***

Thus, at last, we are in position to reconsider Professor Oxman's envoi:

The need for common ground rules and cooperation by users in an area open to all is self-evident;

True online, at least as much as at sea.

it is an indispensable concomitant of a regime of freedom of action itself,

Again, true.

as demonstrated by the basic principle that high seas freedoms “shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas.”

Here, I confess, the analogy breaks down a bit: the online spillover effects of some online activity is much greater than most sea-based activity. If the US has a liberal information regime, it becomes a means by which citizens elsewhere can route around local content control. The same is true in reverse: restrictive US policies on pornography, gambling, or the sharing of digital intellectual property are undermined by foreign rules or the failure of foreign domestic enforcement. The cures require the imposition of a regime of control and enumeration that they would, I fear, be worse than any of the diseases so far identified.

In contrast, this last point is even truer online.

It seems, therefore, that the Law of the Sea has something to teach those of us who immerse themselves in cyberspace — but there is a real danger that the lessons will not be learned in either arena, and we will lose sight of “enlightened self-interest: a rational conclusion that the interests of states in unrestricted access to the rest of the world outweighed their interests in restricting the access of others” … whether that access is to the sea or to the Internet.

If True, There is No Way to Spin This as a Smart Move

The following item is from the Inter Press Service, an organization that I don't know much about. According to the not-100%-reliable Wikipedia, IPS is an Italian-based organization dedicated to giving third world news and journalists more prominence. The fact of the raid is also reported by the International Federation of Journalists. What is most disturbing, though, is the all-too-plausible account of what motivates these raids quoted below; how much credence you give this, despite its plausibility, must turn at least in part on what one makes of the source.

IRAQ: Another U.S. Military Assault on Media

BAGHDAD, Feb 23 (IPS) - Iraqi journalists are outraged over yet another U.S. military raid on the media.

U.S. soldiers raided and ransacked the offices of the Iraq Syndicate of Journalists (ISJ) in central Baghdad Tuesday this week. Ten armed guards were arrested, and 10 computers and 15 small electricity generators kept for donation to families of killed journalists were seized.

This is not the first time U.S. troops have attacked the media in Iraq, but this time the raid was against the very symbol of it. Many Iraqis believe the U.S. soldiers did all they could to deliver the message of their leadership to Iraqi journalists to keep their mouth shut about anything going wrong with the U.S.-led occupation.

“The Americans have delivered so many messages to us, but we simply refused all of them,” Youssif al-Tamimi of the ISJ in Baghdad told IPS. “They killed our colleagues, closed so many newspapers, arrested hundreds of us and now they are shooting at our hearts by raiding our headquarters. This is the freedom of speech we received.”

Some Iraqi journalists blame the Iraqi government.

“Four years of occupation, and those Americans still commit such foolish mistakes by following the advice of their Iraqi collaborators,” Ahmad Hassan, a freelance journalist from Basra visiting Baghdad told IPS. “They (the U.S. military) have not learned yet that Iraqi journalists will raise their voice against such acts and will keep their promise to their people to search for the truth and deliver it to them at any cost.”

There is a growing belief in Iraq that U.S. allies in the current Iraqi government are leading the U.S. military to raid places and people who do not follow Prime Minister Nouri al-Maliki's directions.

And these same people think they are smart enough to avoid become Prince Bandar bin Sultan bin Abdulaziz's puppets? (Have you read Sy Hersh’s latest yet? You really should.)

Bombs Give Exam Stress a New Meaning

Law students are notorious for suffering from exam stress — and complaining about it.

It seems we in the legal world don't know what real stress is: consider this letter from an Iraqi father, writing about waiting to hear whether his daughter has survived her midterms — a ten-day period of being a “sitting duck” for suicide bombers.

She, like thousands of university students in Iraq, is taking her mid-term tests, starting today. They have a fixed schedule, i.e. are sitting ducks - for ten days. Since the beginning of this academic year, the students in her college have been led quite a dance; a deadly dance. The college is situated in an area that has become more like a war zone than a normal neighborhood; it is too near Haifa Street for it to quiet down for more than a few days at a stretch.

They started out by going to college every day. Their college more like a fortress for its security, than an educational facility.

Attack after attack on the surrounding residential area frightened the Dean into improvising a random lecture schedule that allows them to attend their lectures in no pattern that lasts more than one week.
…
With heavy heart I am won over by her insistence, and she attends the random lectures for three weeks.

A great big double explosion takes place at the main entrance of Al-Mustansiriya one Tuesday, killing more than 120 students and wounding more than 200, most of whom were female students. One car bomb and one explosive belt … body parts were brought down from the date palms, as were remnants of their uniforms.

Although hurting for all the families that weredevastated that afternoon, I thanked God my daughter was not harmed.

At home for another two weeks.

Go attend Baghdad University. Also protected. No way.

All this time studying at home and online, doing her best not to lose yet another year to chaos, she is now taking her mid term exams at her college. A sitting duck.

She is mad to continue.

I am mad to let her.

US Bombing Outskirts of Baghdad

Via Juan Cole, a link to this article reporting that US bombing 'terror targets'. The US spin is that

air strikes were aimed at insurgent strongholds in Bo'aitha, a sparsely populated neighbourhood on the west bank of the Tigris, south of the city centre.

While lying within the city limits, Bo'aitha is a district of farms and smallholdings, whose scattered villages are known to house the hideouts of Sunni insurgent gangs linked to al-Qaeda.

In contrast, Prof. Cole writes,

Late Saturday, the US Air Force launched a series of bombing raids on southeast Baghdad. This is absolutely shameful, that the US is bombing from the air a civilian city that it militarily occupies. You can't possibly do that without killing innocent civilians, as at Ramadi the other day. It is a war crime. US citizens should protest and write their congressional representatives. It is also the worst possible counter-insurgency tactic anyone could ever have imagined. You bomb people, they hate you. The bombing appears to have knocked out what little electricity some parts of Baghdad were still getting.

As near as I can make up by comparing this map, which shows Bo'aitha as region 89, but lacks a legend showing the scale, with this map which has a scale but no marking for Bo'aitha, that region is about six kilometers from the city center, which is roughly the distance between the University of Miami and the center of downtown Miami.

Regardless of the legal issues, this doesn't seem to be a tactic well-calculated to win the hearts and minds of the average Baghdad resident.

And, hey, since that's all going so well, let's plan to attack Iran! (link is to Sy Hersh's latest). How long before we start calling this a 'tilt' to the Sunnis?

Is This False Advertising?

I got a letter from my bank yesterday which came in this envelope:

I opened it, thinking I had a bank statement, or worse (since the next bank statement wasn't due). That's what most people would do, I think, if they got a letter from their bank saying in big letters, “Account Information Enclosed.”

But there wasn't any account information in there, not as I understand the term. Instead there was a page of advertising extorting me to use one of the three enclosed check-like documents to get a cash advance on my credit card which is about the most expensive way to borrow money short of a payday loan.

So I've written a letter to the bank to let off steam. Now the questions are, (1) should I send it, and (2) can it be improved? Full text below.

---

February 24, 2007

Kenneth D. Lewis
Chairman, Chief Executive Officer and President, Bank of America
Bank Of America Corporate Center
100 N Tryon St
Charlotte Nc 28255

Dear Mr. Lewis:

I am writing you in the hopes that you will put a stop to a deceptive advertising practice that the Bank of America has adopted.

I recently received a letter from Bank of America with a small representation of the American Flag, and the words “Account Information Enclosed” in big letters on the envelope. Of course I opened it at once — who wouldn't? — but was shocked to find that it did not contain any information about my account. Instead it contained an advertisement encouraging me to borrow money via “checks” that serve as a cash advance drawn on my Quantum MasterCard. This is not “account information” as I understand the term. I've asked many other people, and they all agree that “account information” would mean a bank statement or a notice of some kind such as a charge or deposit record or a change in the terms of the account.

I called customer service at 1 800 692 1564 and attempted to speak to someone about this but was not successful. Customer Service offered to stop sending me the blank checks, which is fine but as I tried to explain to them doesn't really get to my main point: I want to do business with a bank that I can trust, and part of that trust is telling me (and other customers) the truth. I don't think this envelope was truthful. The front-line Customer Service agent then tried to tell me that the checks were “account information” because they were linked to my account. That's so silly that I consider it offensive.

When, after about eight requests, I was finally permitted to speak to a supervisor, the very polite gentleman agreed with me that the marketing was deceptive (he said it made him think of Machiavelli!) and said that if it was up to him, he would change it, but that he didn't have the power to do so. I then asked for the name of a person to whom I could address my concerns, but, like the front-line Customer Service before him, the second-line agent was unable to provide me with the name of any human being at the bank who is responsible for these matters. I was offered a chance to write to a generic address, but declined. I prefer to deal with people who have names and believe that people in organizations should take personal responsibility for their decisions.

And that is why I am writing directly to you.

I'm sure you agree with me that the Bank of America wants to avoid trying to trick people in any way, whether small or large. In this, I am heartened by the strong statement online that appears over your signature at [Long URL]:

At Bank of America, we are committed to upholding the highest standards of corporate governance and ethical conduct in all we do.

In its role as our primary governing body, our board of directors provides oversight of the company's affairs and constantly strives to improve and build on the company's strong corporate governance practices.

Our management processes, structures and policies help ensure compliance with laws and regulations and provide clear lines of sight for decision-making and accountability.

… One way we build and protect our culture is by aggressively promoting our company's core values to associates at all times, as well as our Code of Ethics. We also know that actions speak louder than words. And so, we foster a culture of openness, in which healthy debate is encouraged and associates are expected to blow the whistle on improper activity.

Indeed, I congratulate you on fostering a culture in which even a fairly low-level employee feels empowered to identify this deceptive advertising strategy for what it is, Machiavellian.

I also draw great comfort from Bank of America's Code of Ethics at [another long URL], where you state,

Trust is the foundation on which we build strong relationships with our customers, our shareholders, our communities and one another, and it is trust that enables us to achieve our goals. The responsibility for creating and sustaining trust in Bank of America rests squarely on each of us and the personal integrity we bring to our work.

I am sure you will agree that routinely sending out tens of thousands of letters claiming “Account Information Enclosed” when in fact they have no such thing undermines my (and no doubt many other customers') trust in the Bank of America.

I look forward to your prompt attention to this matter, and trust that you will approach it the spirit of the Bank of America motto, “Higher Standards.”

Yours Sincerely,

I Wish

My Site is worth
$6,712,728

How much is your site worth?

Update: In light of the first comment, I'd better explain: this is the result I got when I ran discourse.net through dnscoop.com. For some reason it thinks that discourse.net is actually the apparently valuable (why?) seorefugee.com.

Regarding 'The South Florida Giant Underground Weirdness Magnet'

Is there a South Florida Giant Underground Weirdness Magnet? Many people seem to think so.

I prefer the theory that someone once picked up the US and shook it, and all the loose screws fell to the bottom…

Downtime Sunday

Saturday night, February 25th, at about 11:15PM PST (i.e. Sunday morning here on the East coast), this blog and everything else hosted at Dreamhost will go dark as Dreamhost is shutting down everything in its building.

With luck, it should be back up again by 4AM PST (7am Sunday over here). It seems that someone discovered of some super-dangerous wiring flaw in the building that hosts the servers and they need to fix it.

Blogging from the Dias

I'm giving a talk soon at a conference organized to honor my colleague Bernard Oxman. My talk has one of those titles I would never have expected to be speaking about: “What the Law of the Sea Teaches Us About the Regulation of the Information Ocean.”

If the audience doesn't throw too much, I may post a preliminary text later.

Do-It-Yourself Book Banning in Miami Schools

Local uber-blog Stuck on the Palmetto reported it first: Book Banning: Business As Usual In Miami-Dade County (UPDATED).

It seems some parents are tired of waiting for the school board to hear their complaints, so they are seizing copies of a book that is insufficiently anti-Cuban for their tastes from right off the school shelves. Not state action here — pure vigilantism.

And the Herald got there eventually.

Senator's Office Finds New Way to Avoid Voters

Senator Gordon Smith R-OR) sinks to a new low in voter relations.

Having two self-described little old ladies arrested when they visit your office and ask to see you seems like an odd way to treat your constituents.

Which Metaphor Works Best Here?

A good rant from The Carpetbagger Report about the media's tendency to focus on trivia at the expense of what matters.

Read it, then help me out: is this the modern equivalent of bread and circuses? Or the opiate (or is that Oprahate?) of the masses?

Crocodile Reminder

The University of Miami sent me the following helpful reminder (I added the photo for local color):

The natural Florida habitat and crocodiles at UM

Eight hundred to 1,000 wild American crocodiles live in the southern tip of the Florida peninsula; occasionally, one of these reptiles visits Lake Osceola on the Coral Gables campus. The University of Miami Police Department, Florida Fish and Wildlife Conservation Commission, and other University administrators have been closely monitoring the on-campus crocodile situation over the past few years. Attempts have been made on several occasions-some successful-to capture and relocate individual crocodiles to more suitable off-campus habitats. In addition, crocodile barriers have been erected in several locations to impede the reptiles from coming on campus.


The real issue is that South Florida is a natural habitat for crocodiles. The more the crocodile population recovers from the brink of extinction and the more humans encroach on their natural habitat, the more instances there will be of human-crocodile interactions. Crocodiles are very mobile in South Florida waterways, so the number in Lake Osceola is constantly changing and sometimes at zero. The good news is that if you show them respect and keep your distance, there is no need to worry. American crocodiles are a rather shy species of reptiles. So long as the University community respects the crocodiles' space and doesn't attempt to feed or harass them, there should be no problems. There is no record of the American crocodile attacking a human in Florida. Crocodiles are a federally protected, endangered species, and feeding, harassing, or otherwise harming them is a felony. If you see a crocodile on shore on campus, keep your distance and call UM Police at 305-284-1105. Further information on the American crocodile is available at www.myfwc.com, www.miami.edu/police, or through the UM Police Crime Prevention Office at 305-284-1105.

Shorter UM Reminder: Do not pet the crocodiles.

FL GOP Wants to Raise Taxes -- On Poor People

It's bad enough to read that the state GOP — or at least the ones in the state House of Representatives (ie. the most right-wing ones at present), want to eliminate property taxes and instead increase the sales tax (which is a regressive tax). I would like to dismiss this as posturing, but there are three reasons why I can't.

1) The proposal is to make the change via a ballot proposition to chance the state constitution. Anything can happen, especially if it is dressed up as a tax cut.

2) State property tax receipts are tanking, so the state will be out hunting for more revenue.

3) This is Florida.

Another Law School Moves Into the Neighborhood

FIU Law started up just a few years ago (2002), and now Ave Maria School of Law Announces Relocation to Southwest Florida. It's planning to move in 2009 from Ann Arbor, MI to the startup town of Ave Maria, Florida, a site located about 30 miles east of Naples, Florida. (Local news coverage.) Naples is about two and a half hours from Miami — unless you get caught behind a slow car on Coral Way, aka US 41 (or there is an accident on Alligator Alley, aka I-75) in which case it's more like four hours.

Is there any other region in the country that has seen such explosive growth in law schools recently?

Of course, Ave Maria is not your average law school…and it's bankrolled by an unusual donor.

Our Server Is Having a Bad Day

Apologies for any troubles you have viewing the site and especially commenting today. In addition to a ton of spam, it seems that one of the other sites on the shared server I happen to be on — a site with the enticing name of “moneychump” — has got 1062 diggs and counting for a posting entitled 52 money hacks - one for each week!. (Please don't click on it.) The flood of hits has driven server load up to a peak of over 105, and even with throttling of that site is hovering in the teens. My experience is that this blog is ok so long as the total server load is under five or so.

There are days when I think it would be nice to have my own managed server hosted somewhere. Then I look at the price tag…

Bar Camp Miami Tonight

The UM School of Communications will be hosting Bar Camp Miami tonight.

I'm looking forward to it.

D.C. Circuit Upholds Jurisdiction-Stripping of Guantanamo Habeas Claims

This is the “Al Odah” case, although it may end up captioned differently (Boumediene v. Bush, 05-5062 (D.C. Cir., Feb. 20, 2007)). Text of the 2-1 decision by Judge Randolph for himself and Judge Sentelle. There's a long and persuasive dissent by Judge Rodgers, noting that the Supreme Court, at least in dicta, appears to hold a different view about key elements of the case.

If Sandra Day O’Connor were still on the Supreme Court, I'd predict reversal with some confidence. Now, I'm not as sure, but I still think there is a good chance that there are at least five votes left to overturn this. I suspect that there is, however, no real chance it would be overturned en banc in the D.C. Circuit. That court has become astoundingly right-wing as of late.

'Internet Hunting' Ban Gains Ground

As Miami's own Dave Barry says, I am not making this up.

More States Move To Ban Internet Hunting: A Texas businessman who wanted to allow computer users to hunt from the comfort of their homes has instead spawned dozens of state laws banning the practice. Texas lawmakers shut down San Antonio businessman John Lockwood's operation

in 2005 and two dozen other states have since banned Internet hunting. Connecticut lawmakers are now considering whether to follow suit and ban state residents from using a computer mouse to point, click, and kill penned animals herded before a Web-based camera.

On the one hand, this seems like a barbaric practice, and I'm perfectly happy to see it banned. On the other hand…is this our most pressing social problem?

NOVA Behaving Badly

The University of Miami may not have behaved as well as one might wish in dealing with the demands of its striking janitors last year, and worse with students who supported the union, but at the end of the day the University stepped up to the plate and offered a decent contract.

The same cannot be said about Nova Southeastern University, which is engaged in a very unfortunate — I almost wrote something much worse — campaign to prevent a similar unionization of its workers. Their jobs are being handed off to new sub-contractors. Workers active in the union movement are not being rehired by these new contractors.

Coverage of NOVA behaving badly can be found in the article linked right above, and in Better wages, healthcare not enough, a column by Ana Menendez.

Cold Fusion Reaction Replicated

New Scientist, Table-top fusion, back with a pop:

Reports that the bubble had burst for a form of cheap, table-top nuclear fusion may have been premature. Rusi Taleyarkhan, the physicist at the centre of a furore surrounding so-called bubble fusion, was last week cleared of scientific misconduct.

In 2002, Taleyarkhan, then at Oak Ridge National Laboratory in Tennessee and now at Purdue University in West Lafayette, Indiana, published a paper in Science claiming that bombarding a solvent with neutrons and sound waves produced tiny bubbles that triggered nuclear fusion reactions. Then in March 2006, Purdue began investigating allegations of misconduct against Taleyarkhan, amid accusations that the evidence of fusion he reported was actually caused by a radioactive isotope of californium.

However, on 7 February, Purdue absolved Taleyarkhan's group of any misconduct. The verdict follows independent verification of Taleyarkhan's results by Edward Forringer of LeTourneau University in Texas and his colleagues last November (Transactions of the American Nuclear Society, vol 95, p 736).

I want my “Mr. Fusion”!

McCain's Forked-Tongue Express Rolls On

Jesus' General has the graphic that tells all:

Substantiation: compare McCain's statement that Roe v. Wade should be repealed yesterday with McCain's pro-Roe v. Wade remarks in 1999 when he was trying to run left of the field:

“But certainly in the short term, or even the long term, I would not support repeal of Roe v. Wade, which would then force X number of women in America to [undergo] illegal and dangerous operations.”

A man with no principles, or merely very changeable ones?

Updates: (1) Changed his view on Ethanol subsidies too (a big issue in Iowa…), but at least here he has a plausible excuse — higher gas prices. (2) And maybe the pander / lie was in 1999, given his consistent voting record against reproductive freedom?

Iraqi Oil Law?

A bunch of evening clicking around led to me to what purports to be an unofficial English translation of the latest draft text of a proposed Iraqi Oil Law. Apparently, this draft text has been a closely held secret.

According to this blog, if passed this draft would have some serious distributional consequences:

Please feel free to widely distribute this document. It's important to start a stronger debate and to try to educate Iraqis and Americans about this catastrophic law that will facilitate the further looting of Iraqi oil, and will achieve nothing other than increasing the levels of violence and anger in Iraq. This law legalizes PSAs (production sharing agreements) in Iraq. Iraq will be the only country in the middle east with such contracts privatising Iraqi oil and giving foreign companies crazy rates of profit that may reach to more than three fourth of the general revenue. Iraq and Iraqis need every Dinar that comes from oil sales. In addition to the financial aspects of this law, it can be considered the funding tool for splitting Iraq into three states. It undermines the central government and distributes oil revenues directly to the three regions, which sets the foundations for what Iraq's enemies are trying to achieve in terms of establishing three independent states.

Unfortunately, I can't vouch for the authenticity of the translation or the commentator as they are all complete strangers to me.

Nor am I so sure that dividing Iraq yet sharing oil revenue is necessarily such a terrible outcome, at least compared to the other imaginable outcomes. As for PSAs, I'd think the devil is in the details — Iraq is presumably short of capital for exploration and development (the capital having been destroyed, denuded. and of course stolen) so unlike its neighbors it may need these deals — if somehow they were concluded in an equitable fashion…which I admit is not all that likely in the current circumstances where the government has such a weak hand to play.

By raising these questions I don't want to sound like I'm claiming the blog quoted above is wrong. I simply don't have enough information to form a judgment either way. And, for what it's worth, the same bout of clicking did bring to me to Digby's quotation of this line by conservative she-guru Ann Coulter, “Liberals are always talking about why we shouldn't go to war for oil. But why not go to war for oil? We need oil.”

Rumpole on the Rampage

The Justice Building Blog, a gossipy yet serious attempt to talk about what happens in the local courts, is on a bit of a roll recently: I recommend both Diary of a Mad Jurist and Traffic.Parking (about how to improve conditions in traffic court). Having been through it recently, I especially like the idea of moving traffic ticket soundings (in which the magistrate offers most offenders a plea — usually, so many dollars, no points) online. But I wonder if the proposed rule about never allowing continuances isn't a bit harsh. Even the feds allow them for illness, for example.

On the other hand, I do think that last week's post about the TV exposé of local cops is a bit late (unless maybe the local station is doing reruns?). I wrote about it a year ago.

An Ethics Question

Crooked Timber, You Can be The Ethicist:

Graduate Admissions Committee for the department in question is deciding whom to admit. For said discipline, as for several others, there is a website on which potential students gossip share information about the departments to which they are applying, and many do so anonymously. However, many such students say enough about themselves that if you are in possession of their file (as graduate admissions committee is) you can identify them with near, and in some cases absolute, certainty. One applicant to said department behaves on the website (under the supposed cloak of anonymity) like… well, very badly, saying malicious things about departments he has visited, raising doubts about whether he is honest and the kind of person it would be reasonable to want other students to deal with, and generally revealing himself to be utterly unpleasant.

Question: is it wrong for the GAC to take this information about the applicant into account when making a decision? Secondary question: does it make a difference to your answer that the department is in a private, not a public, university?

My knee-jerk reaction was that one better be pretty darn sure one has the right person before making a major decision about them based on something posted on a web site.

This reaction was reinforced by one of the many very interesting comments at Crooked Timber, which asks how the committee can be sure that this wasn't a joe-job. Indeed, if it became known that this sort of attack was possible, what a way to do down one's rivals and ex-inamoratas!

I can imagine a world in which a committee might ask for further information in light of something like this, but depending on what amounts to hearsay without some sort of confirmation is, I think, a dangerous road to tread. It might even be a denial of due process in a public process.

Here's a slightly different hypothetical that may serve to test my intuition: suppose instead of a web posting that seems to be by the applicant, the committee received an unsigned letter accusing the applicant of the same bad behavior. What result, and why?

This Should Be Interesting

Judge Orders Padilla Jail Personnel to Testify:

Officials at the Navy brig where terrorism suspect Jose Padilla was held for 3 1/2 years as an enemy combatant were ordered Friday to testify at a hearing to determine his psychological competency, a ruling that allows the defense to press its claims that sensory deprivation and torture in confinement have rendered the alleged al-Qaeda operative unfit to stand trial.

The ruling marks one of the few times since the Sept. 11, 2001, terrorist attacks that officials responsible for the jail conditions and interrogations of terrorism suspects have been called to testify, and it is the first time in the Padilla case.

I gather the hearing is “next week” but don't know exactly when. Pity it is going to be such a busy week for me, for I'd like to go. [UPDATE: Why do I have to read the Guardian, based in London, to learn that the hearing will be on the 22nd.]

Meanwhile, Padilla's co-defendants are asking to have their trial severed from his on the grounds that the media attention given to Padilla's case will poison theirs. There's some irony there, given that at least on the face of the indictment, the tarnishment seems much more likely to work the other way around: the facts alleged against the other defendants are more damning and more detailed than the rather thin gruel served up about Padilla himself.

Real Funny

Laugh, and the world laughs with you. Or goes to hell in a hand basket, as the case may be.

The Mountain Has Labored and Brought Forward ...

I suppose I ought to be happy that the House has passed a non-binding Measure Opposing Troop Surge.

But. It seems clearer each day that there is no serious strategy for victory in Iran — however defined (and it usually isn't defined by those who shout for it most loudly). There is no serious plan for how we will staff the conflict other than extending the rotation of troops who have suffered enough. There is no serious plan even for equipping the troops on the ground, many of whom are being deployed without the armor that might protect their vehicles against IEDs and the like.

There is, at last, some sort of plan in the next budget for paying to replace the equipment this war is chewing up. The contractors will be OK; if only we had equally good plans for the soldiers and families being chewed up by this war. Not to mention the Iraqis.

Otherwise, what planning we find in the White House seems to be about rattling sabers at Iran and hoping they take the bait, allowing massive air strikes in retaliation. This is the sort of planning you expect from drug addicts scheming for a new fix.

In this atmosphere, the House of Representatives has labored hard. Members debated for 44 hours and 55 minutes. Over the past four days, a total of 393 Members spoke on the House Floor: 221 Democrats, and 172 Republicans. And then they voted. And now we have a totally precatory resolution aimed at the surge that doesn't even condemn the war, and doesn't address the Iran situation.

The radio said “Bush suffers a major political defeat.” Let me tell you how much that defeat matters: while the House was debating today, the Pentagon shipped off another 1,000 troops.

I understand the argument that this is a first step in a long campaign. Members who voted for this will see that they are not struck dead by lightening and this will embolden them.

Wee, sleekit, cowrin', tim'rous beastie,
O, what a panic's in thy breastie!
Thou need na start awa sae hasty,
Wi' bickering brattle!

And, yes, it could be even worse: the Senate tomorrow will vote on whether it can even vote on a similar, equally precatory, resolution. UPDATE: And may not even pass the resolution with the 60 votes needed to allow debate.

I'm so excited and heartened I can't hardly stand it.

Bush Iraq Plans Were 'Delusional'

British people get told this via the BBC, but (unless you live in Alaska) will you see it in your daily paper?

Iraq invasion plan 'delusional': The US invasion plan for Iraq envisaged that only 5,000 US troops would remain in Iraq by December 2006, declassified Central Command documents show.

The material also shows that the US military projected a stable, pro-US and democratic Iraq by that time.

The August 2002 material was obtained by the National Security Archive (NSA). Its officials said the plans were based on delusional assumptions.

The US currently has some 132,000 troops in the violence-torn state.

Comments Are In Danger

For the past couple of days this blog has been under increasingly severe attack by sp**mers. Some are for notorious prescription drugs. Other are to garbage name sites (presumably in the hopes of creating a high search rank for later sale?) Still others are to hacked locations on message boards at institutions whose pages have been hacked.

I have wasted a lot of time deleting this stuff, and now am being driven to closing comments in the items that they most frequently target. I hope I can keep comments open — especially as one or two threads are quite active and interesting right now.

But there's a limit to how much whack-a-mole I can play here.

Nancy Pelosi's Office Has a Blog

House Speaker Nancy Pelosi's office has a new blog, called appropriately enough, The Gavel. Today there are lots of videos (via C-Span via YouTube) of house members giving speeches about the war.

I also noticed the Comments Policy:

Due to staffing constraints, we regret that we are not capable of monitoring, moderating, and responding to comments at all times. Instead, we will open up comments on selected posts when we, or our guest-posters, have adequate time to give your input the time and respect it deserves. We appreciate your patience and understanding, and we will be sure to give advance notice when the comments are open. Always feel free to contact us via e-mail with any concerns or input you might have.

…which seems reasonable enough. And then there's the Kid's Page which is about as treacly as usual, but has some good links and does sport an amazing photo of a young Pelosi with JFK, which I'm hotlinking to below:

Love & Traffic Court

Today's Miami Herald has a cute Valentine's Day story about a Broward County couple finding love in traffic court.

When I went to traffic court a couple of weeks ago, all I got was my ticket dismissed. And as the cop didn't show up, I didn't even get to explain why the ticket — supposedly for stopping several inches beyond the line at a stop sign but in fact for behaving legally in a manner not enjoyed by a police officer — was an outrage. So much for my first pro se appearance in court…

Note to self: if you wear a tie to traffic court in Miami, they all think you are a lawyer representing someone else.

Fish Stories

So it seems that Florida diners are ordering grouper and getting counterfeits: On Fla. Menus, a Favorite Fish Experiences Identity Theft. I suspect that when the stuff is slathered in sauces, or charred to within an inch of charcoal, diners can't tell the difference anyway.

It all puts me in mind of the story of the lady who went to Zabars in New York and said, “I'd like half a pound of caviar. And make sure it's imported because I can't tell the difference.”

What Makes a Good 1L Law Exam Answer

Orin Kerr has done 1Ls around the country a great service by writing a very clear guide to distinguishing between Bad Answers, Good Answers, and Terrific Answers to 1L exams.

While the principles also have considerable applicability to more advanced courses, I think that we professors legitimately expect all this and more from 2Ls and 3Ls, including more complex issue-spotting, coping with more complex and contradictory rules, and taking account of various sorts of policy considerations (when relevant), to name just three. Actually, might we hope for some of those in the terrific 1L answers too? I should admit here that it's been far too long since I actually taught first years, and for some to-me-incomprehensible reason the day students (but, it must be said, not the students in our since-dismantled night program) said I was too scary….

Update: on the subject of exams, Paul Ohm has a thoughtful post about achieving fair grading in a common grading situation. (Personally, I grade each question separately and average them, but that's not without issues.)

Two Videos That Belong Together

These two videos belong together: Web 2.0… The Machine is Us/ing Us

and Introducing the book:

I did have some trouble deciding which one should come first.

Tell the Prof to Talk Faster

Prof. Ann Bartow seeks advice for some students who have what I hope is an unusual problem.

I once asked one of my students if lots of people used their laptops to goof off. No, he said, you talk so fast there's no time for that.

Three As a Number to Reason About

Further to my post yesterday, here's what the influential and mainstream Nelson Report (via Steve Clemons) has to say about sending three carrier groups to the Gulf:

On the other hand, increasing to three carrier strike groups would be noticeably more 'robust', belligerent and suggestive of intending or anticipating attack. The difference between two and three strike groups is huge. Two ='s strong and capable, but existing offensive intent is less probable; three ='s 'we don't care about provocation, we're preparing to fight in this new dimension'.

(An indicator would be to watch for announcements about Nimitz strike group; Nimitz reportedly has completed the routine pre-deployment work-up and is in San Diego.)

The US has eleven carriers (with #12 on the way). Sending three out of eleven to the Gulf is more than saber-rattling.

Worse, the Gulf is too small for three carrier groups to function effectively, and has one entrance/exit that is about 20 miles wide and runs along the Iranian coast. This creates a sitting duck effect — a 'target rich' environment for potential attackers. In other words, it's inviting Iran to take the bait, something that becomes increasingly likely the more that the Iranians come to believe that they are about to be attacked. (Which is undoubtedly the point of the US government media strategy.)

(And yes, the sailors on the Nimitz have been told that they are deploying “to the Middle East in April”.)

Gulf of Tonkin meet Persian Gulf.

EFF Wants to Hear From (Innocent) YouTube TakeDown Victims

Viacom got Youtube to take down 100,000 videos. Many of which were not in fact infringing of anyone's rights. EFF would like to hear from the victims:

Talk About Burying The News

Deep in the middle of Newsweek's article Blowup? America's Hidden War With Iran, we find this news:

A second Navy carrier group is steaming toward the Persian Gulf, and NEWSWEEK has learned that a third carrier will likely follow.

A THIRD CARRIER? That would mean, presumably, a third carrier group.

Remember when the Bush administration piled all those troops outside of Iraq and many people refused to believe they would be told to attack?

There is no way I can imagine this bunch sending three carrier groups to the Gulf unless they plan to use them. Incidentally, the Gulf is a very small bit of water for one carrier group, not to mention three. And, I worry about them being, um, targets.

Doesn't anyone remember Millennium Challenge? (Cf. Wikipedia entry)

Terribly Upsetting Photo

Don't click to view this terribly upsetting photo unless you have your handkerchief ready. (Via CorrenteWire).

Yes, there is hope here as well as tragedy, but the tragedy was so unnecessary…

He Who Wields the Hatchet

Mike Allen is a journalist rich in education and experience:

• Served a Time magazine's White House correspondent
• Six years at The Washington Post, where he covered President Bush's first term, Capitol Hill, campaign finance, and the Bush, Gore and Bradley campaigns of 2000.
• Stints at the Richmond (VA) Times-Dispatch, The Free Lance-Star (VA)
• Richmond and Alexandria bureaus of The Washington Post.
• Covered parts of Connecticut for The New York Times.
• B.A. from Washington and Lee University, where he majored in politics and journalism.

He has a c.v. as good or better than most in the business.

So how have we come to a place where a guy with this much experience can do something as stupid and evil — or is it just lazy and ignorant? — as this?

Update: Could it be petty, personal pique?

Journalism 101

My brother has an article up at Nieman Watchdog entitled How the press can prevent another Iraq. It's nothing more than a reminder of basic journalism: don't believe everything a government official tells you; ask for proof. Use common sense.

It's absolutely amazing that any of this needs to be said to professionals. We knew this kind of stuff when we were high school journalists.

And yet, it does need to be said, because for some reason most reporters these days don't do their jobs.

Double Standards

The guy who started the whole flap about how Edwards should fire his blogger-staffers for things they had written before joining the campaign turns out to have a rather elastic approach to serious prior misdeeds by his own employeesBush-Cheney '04 campaign employees..

This Calls for Outsourcing

In a budget notable for cutting hospitals for the poor and indigent while not raising taxes for billionaires, the Bush budget proposal contains the familiar assault on domestic public TV and radio. The foreign broadcasting arm, long a home for a strange mix of dedicated professionals and far-right propagandists, is slated for a hefty increase. (See MediaCitizen: Bush Calls for Propaganda Surge, Slashes PBS.)

Here's my modest proposal: given how generally lousy so much of foreign propaganda is, why not outsource the job to the BBC World Service, which, despite its effectiveness, continues to suffer the death of a thousand cuts.

Inflamatory Rhetoric Watch

I've been watching the Edwards blogger flap (Edwards Learns Campaign Blogs Can Cut 2 Ways) with great interest, but haven't blogged it because I had nothing interesting to say.

It seems the Edwards staff hired to hard-charging feminist bloggers to help the campaign (which has a big blog operation of its own), but didn't vet them as well as it should have. As bloggers sometimes do, they'd each said a bunch of dumb stuff. There were not only rude words but intemperate opinions.

Edwards himself had no role in the hiring and had never even met them — the campaign staff is already that big? — until the flap was well under way. At that point he found himself caught between the right-wing spin machine which was seeking scalps, and a very strong push from his early supporters and from the liberal side of the blogging community which wanted him to condemn this piece of what they somewhat mistakenly called Swift Boating (it was somewhat mistaken because while exaggerated, the charges against the bloggers had some more truth at their core than did the Swift Boat smears of Kerry). At least one of the new staffers had quit her job and moved hundred of miles to join the campaign, so any firing had a real human cost.

Edwards waited 36 hours before deciding, apparently so he could meet the people before making a decision — which could be spun as slow, unprepared, and indecisive, or as a resolute and patient commitment to doing the right thing on his own time.

And in the end, Edwards did something right: condemning the sins, but not the sinners.

You could say this is a sign that the blogs are flexing their muscles. Or that Edwards caved in to the left wing. Or that the right wing's Mighty Wurlitzer (where smears start on the fringe and work their way into the mainstream) is losing its power to mesmerize Democrats. Or that Edwards is a thoughtful guy who wanted to look the two staff people in the eye, and hear them out personally, before trashing their lives and possibly careers.

But here's why I mention it now: I couldn't help but wonder, what if it were me? Not that I have any plans or desires to leave academe, but suppose someone were mad enough to appoint me to the modern equivalent of the Board of Tea Experts (now defunct). What, I wonder, is the most incendiary thing that I've blogged (or published elsewhere) that could be quoted in or out of context to make me look bad (fairly or unfairly)?

The War Against TOR

Via the Chronicle of Higher Education, Caught in the Network — how campus cops tried to pressure Prof. Paul Cesarini to stop using TOR, an anonymizing proxy.

(I tried TOR a while back and found it a bit clunky.)

Prof. Cesarini did not give in to their suggestion that he avoid teaching about TOR in his classroom, although he expressed some sympathy for the campus IT folks' worry about what it might do to their network.

Are We Inured to Incompetence Yet?

Even given the soft bigotry of low expectations that prop up the Bush administration, this has to be just a little shocking, doesn't it?

Rice Denies Seeing Iranian Proposal in '03: Secretary of State Condoleezza Rice was pressed yesterday on whether the Bush administration missed an opportunity to improve relations with Iran in 2003, when Tehran issued a proposal calling for a broad dialogue with the United States, on matters including cooperation on nuclear safeguards, action against terrorists and possible recognition of Israel.

Although former administration officials have said the proposal was discussed and ultimately rejected by top U.S. officials, Rice, who was then national security adviser, said she never saw it.

Either as a lie, or as a screw-up, or as a plot to keep her in the dark, this is fairly major, right? Especially if the administration plays Mid-East double or nothing by starting a war with Iran…

The Paranoids Were Right: NYC Cops Harassed Protestors at RNC Convention

Buried deep, deep inside the New York Times, right at the bottom of a page, is this little bombshell: the paranoids were right.

Records Show Extra Scrutiny of Detainees in '04 Protests: When more than a thousand people were swept up in mass arrests during the 2004 Republican National Convention, defense lawyers complained in court that the protesters had to wait much longer to see a judge than those accused of far more serious crimes like robbery or assault.

Now, newly released city records not only put precise numbers to those claims, but also show the special scrutiny the New York Police Department gave to people arrested in or near the convention protests.

At the height of the mass arrests, on Aug. 31, 2004, demonstrators — and some people who said they were bystanders just swept up by the police — were held for an average of 32.7 hours before they saw a judge, according to city statistics. For people charged with crimes that the police decided were not related to the convention, the wait to see a judge was just under five hours.

…

The vast majority of those arrested were held on charges of roughly the same weight as a traffic ticket, and the law does not require fingerprinting for those offenses. However, the Police Department determined months before the convention that no one would be given a summons; instead anyone taken into custody would be sent through a full arrest process, including fingerprints and criminal record checks. Police officials said that for public safety, it was important to use fingerprints to confirm identities.

Not to mention that the special detention facility the protesters (but not the murders) were shipped to was so unhealthy that 40 cops have “submitted medical reports, saying they became ill after working there.”

It's Missing Cheney

Citizens for Responsibility and Ethics in Washington has posted its list of Criminals and Scoundrels: The 25 Most Corrupt Officials of the Bush Administration. Someone seems to be missing….

More seriously, I think that including petty thieves like Claude Allen on this list cheapens the effect — the real problem with the Bush administration is not that there is the occasional shoplifter or petty fraudester in private life but rather the institutionalized corruption amounting to kleptocracy.

An American In Paris

My father is having his 80th birthday today, and has taken himself and my mother off to Paris to celebrate, which seems like a pretty good idea (except that the rest of us have to stay back here and work or go to school).

I hope you have better things to do today than read this, but just in case, Joyeux anniversaire dad!

Our Fallen State

U.S. Declines to Join Accord on Secret Detentions:

Representatives from 57 countries on Tuesday signed a long-negotiated treaty prohibiting governments from holding people in secret detention. The United States declined to endorse the document, saying its text did not meet U.S. expectations.

…

State Department spokesman Sean McCormack declined to comment, except to say that the United States helped draft the treaty but that the final wording “did not meet our expectations.”

The Associated Press reported that McCormack declined to comment on whether the U.S. stance was influenced by the Bush administration's policy of sending terrorism suspects to CIA-run prisons overseas, which President Bush acknowledged in September.

…

The convention defines forced disappearance as the arrest, detention or kidnapping of a person by state agents or affiliates and subsequent denials about the detention or location of the individual.

Why Google Is Scary

Nelson's Weblog: googleSearchHistory

Did you know that for years Google has been keeping a record of every search you do? And did you know they're now associating your search history with your Google login for other services like Gmail, Calendar, and the like? Surprise! It's Search History. And now it's being used to personalize your search results.

I don't like Google aggregating this data about me. It is possible to opt out. You can turn off search history recording in the settings page. You can also edit your history, including removing it entirely.

…

Update Tuesday, Feb 6: the instructions above let you remove the search history that you can access via the search history product. However, Google is logging your search history in other places for other purposes. See Google's privacy FAQ and privacy policy for more info on those other forms of search history.

Nothing to fear! Of course! Nothing to fear!

Is This the Start of a Student Media Revolution?

This announcement from the Washington Post is interesting on several levels.

High School Newspapers on washingtonpost.com: washingtonpost.com and the Washington Post Young Journalists Development Program are now enabling local high school journalists to put their school newspapers online, free of charge.

Our goal is to create a thriving virtual community for high school journalists and their peers, a place where students and other washingtonpost.com readers can see what schools are writing and comment on their work.

High-schoolers, with the aid of faculty advisors, use easily accessible blog software to publish articles and photos to a washingtonpost.com server. The blogs can be updated from any computer at any time, allowing student journalists the freedom to post stories outside of their traditional publication schedule.

We are launching the new feature in collaboration with three local high schools - located in D.C., Maryland and Virginia, respectively - and are actively recruiting more participants. The program is open to public and private high schools in The Post's circulation area.

While it appears that the newspaper faculty advisors will have some role, I wonder how that will work in practice. The Post says that “The blogs can be updated from any computer at any time, allowing student journalists the freedom to post stories outside of their traditional publication schedule.” Does that mean true freedom from the school's control? In other words, will the faculty advisors have to sign off on every posting, or just initially authenticate the students (and perhaps pull credentials)? There's a real potential here for this resource to become a liberating back-channel around the censoring grip of high school principals. Can that really be what the somewhat conservative Post has in mind?

And how about the comment sections? Presumably these will be moderated like the Post's own comment sections, but by whom? Will these become real independent forums for kids (and parents?) to talk about school issues? That would be a potentially transformative political resource as so much of family life is organized around schools.

Then there's the revenue issue. Will the Post run ads in these sections? Will it kick back any of the money to the students? Will they be recruited to sell ads for their sections and given commissions?

Done right, this could be the start of something big.

Someone Should Graph This

The Carpetbagger Report, We are now up to a whopping 17 John McCain Flip-Flops.

Kidding aside, while I do worry that the long campaign season will encourage the tendency of the press to pile on minor gaffes, it's also entertaining to speculate just how high the McCain flip-flop index can go. I wonder what Las Vegas or Ladbrooks would give for over/under predictions?

GOP Senators Are Now the Ostrich Party

Escalation? Everyone can talk about it except the Senate:

A long-awaited Senate showdown on the war in Iraq was shut down before it even started yesterday, when nearly all Republicans voted to stop the Senate from considering a resolution opposing President Bush's plan to send 21,500 additional combat troops into battle.

Almost every Republican Senator — including Lieberman but excluding endangered Collins and Coleman — voted to prevent debate on even the watered-down precatory Warner resolution on Iraq. Even Senator Warner voted against (debating) his own resolution! And that Chuck Hagel, talking so brave last week about the moral imperative of ending the war, why, suddenly he's against debate too.

In the short run, this means that today — after serious arm-twisting by the capo di tutti capi (Cheney) — a slim majority of the Senate is for debate, but far too little for cloture. But more importantly, unless it does something to clean off this taint soon, the Senate GOP has just taken ownership of what used to be Bush's war and McCain's escalation. This has the potential to be a party-defining vote. And it significantly increases the odds that the GOP nominee will not be a Senator or Congressman — a big boost to Romney and Giuliani, and even the hapless Huckabee, I suppose. Not to mention harming the electoral hopes of several Senators.

I believe that the country is way ahead of the Senate on this one.

Weird Even By Florida Standards

This story, Jilted, diapered astronaut planned to kidnap rival, is weird even by Florida standards.

Can Workers Be Fired for Off-Duty Blogging?

For most jobs — maybe not mine — you can probably be fired for blogging during working hours unless the boss approved it as a work-related activity. But what about off-duty blogging? On controversial topics? This interesting article from today's New York Law Journal looks at the rights of bloggers (especially bloggers in New York) relating to their jobs.

And New York has some interesting relevant law,

In New York, an employer may not discharge, discriminate against, or refuse to hire employees because of their participation in “legal recreational activities” off the employer's premises during nonworking hours unless the activity “creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest.” N.Y. Lab. Law §201d(2)(a)©, (3)(a). The statute defines “recreational activities” as including “any lawful, leisure activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” Although very few courts have interpreted this statute (and none have applied it to blogging), courts that have analyzed the statute have declined to give “recreational activities” an expansive interpretation. See, e.g., McCavit v. Swiss Reinsurance America Co., 237 F3d 166 (2d Cir. 2001) (holding that dating is not a “recreational activity” protected by the New York legal recreational activities statute).

Employees can be expected to argue that blogs that may be offensive or embarrassing to the employer are lawful recreational activities under the law. Employers, however, can be expected to press for a narrow interpretation of the law that recognizes the employer's right to manage its business and protect its reputation and confidential information.

There's lots more where that came from.

Update: Ack! It's behind a paywall. I try never to link to stuff like that if I can avoid it, but now that I've posted this, I don't think I can very well take down this item.

Assessing Credibility and Demeanor of Witnesses who Testify Through Interpreters

Judge Posner's decision in Apouviepseakoda v. Gonzales, 05-3752 (7th Cir., Feb. 2, 2007), which I mentioned yesterday has an interesting twist.

It's one of the great fetishes of US law that triers of fact, be they juries, judges, or administrative officials (including ALJs and Immigration Judges), deserve deference for their credibility determinations as they saw the live witness and the reviewer of the cold record did not. We don't question jury determinations — they're a black box, and juries are not called upon to give reasons for their decisions as to who to believe. The same is not true, however, of either judges or administrators. We expect them to issue reasoned opinions, and call foul when they fail to and when the reasons they give fail to hold water.

Indeed, one of the puzzles of administrative law is the so-called Universal Camera problem — suppose that an initial trier of fact reached one decision on the evidence but that the higher-ups in the agency appeals process reached an opposite conclusion. When the matter goes to the court of appeals, what weight should the court put on the trier's views? The issue implicates two competing values in administrative law: on the one hand the great deference to the front-line assessment of credibility, on the other hand the command in the Administrative Procedure Act that the agency, in deciding a matter, has full power to determine it (i.e. that its hands are not tied by lower-level officials). It's very hard for both of these to be true at once: if we give weight to demeanor then the front-line official has de facto power to limit the decisions of his/her bosses. If on the other hand we don't give any extra credence to the factual findings of the person who actually received the evidence, we've undermined an ancient principle of Anglo-American jurisprudence. We square that circle by saying that the trier's decision is part of the record that binds the agency. So it's free to make any decision, but its decision must be based on the record. The trier, we say only somewhat convincingly, hasn't bound the agency, he's just made part of the record.

Comes now Judge Posner in Apouviepseakoda to ask a really good question about credibility determinations by administrative agencies (and implicitly also by judges, although not juries):

The fact that she was testifying through an interpreter has a significance that my colleagues do not appreciate when they say that “The IJ spent 6 hours in a hearingroom, face to face, with Ms. Apouviepseakoda. We have never met her.” I take this to be an allusion to the common though not necessarily correct belief that being present when a witness testifies greatly assists a judge or juror in determining whether the witness is telling the truth. Even if so in general, it cannot be so when the witness is a foreigner testifying through an interpreter, especially if the judge cannot even hear the foreigner, but only the interpreter. Reading the facial expressions or body language of a foreigner for signs of lying is not a skill that either we or Judge Brahos possess.

We understand the dilemma facing immigration judges in asylum cases. The applicant for asylum normally bases his claim almost entirely on his own testimony, and it is extremely difficult for the judge to determine whether the testimony is accurate. Often it is given through a translator, and even if the applicant testifies in English, as a foreigner his demeanor will be difficult for the immigration judge to “read” as an aid to determining the applicant's credibility. Unfortunately, the Department of Homeland Security and the Justice Department, which share responsibility for processing asylum claims, have, so far as appears, failed to provide the immigration judges and the members of the Board of Immigration Appeals with any systematic guidance on the resolution of credibility issues in these cases. The departments have not conducted studies of patterns of true and false representations made by such applicants, of sources of corroboration and refutation, or of the actual consequences to asylum applicants who are denied asylum and removed to the country that they claim will persecute them. Without such systematic evidence (which the State Department's country reports on human rights violations, though useful, do not provide), immigration judges are likely to continue grasping at straws—minor contradictions that prove nothing, absence of documents that may in fact be unavailable in the applicant's country or to an asylum applicant, and patterns of behavior that would indeed be anomalous in the conditions prevailing in the United States but may not be in Third World countries—in an effort to avoid giving all asylum applicants a free pass. The departments seem committed to case by case adjudication in circumstances in which a lack of background knowledge denies the adjudicators the cultural competence required to make reliable determinations of credibility.

The concern that demeanor evidence is less probative — or is being judged by people who are not properly trained to assess it — when testimony is rendered through an interpreter, is one that Judge Posner has raised before, notably in Djouma v. Gonzales, 429 F.3d 685, 687-88 (7th Cir. 2005), and more thoroughly in Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir. 2005), where speaking for the court, Judge Posner wrote:

We close by noting six disturbing features of the handling of this case that bulk large in the immigration cases that we are seeing:

…

4. Insensitivity to the possibility of misunderstandings caused by the use of translators of difficult languages such as Chinese, and relatedly, insensitivity to the difficulty of basing a determination of credibility on the demeanor of a person from a culture remote from the American, such as the Chinese. E.g., Lin v. Ashcroft, 385 F.3d 748, 756 n. 1 (7th Cir.2004); Ememe v. Ashcroft, 358 F.3d 446, 451-53 (7th Cir.2004); Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir.2003); He v. Ashcroft, 328 F.3d 593, 598 (9th Cir.2003); Deborah E. Anker, “Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment,” 19 N.Y.U. Rev. L. & Social Change 433, 505-27 (1992); Neal P. Pfeiffer, “Credibility Findings in INS Asylum Adjudications: A Realistic Assessment,” 23 Tex. Int'l L.J. 139 (1988). Behaviors that in our culture are considered evidence of unreliability, such as refusing to look a person in the eyes when he is talking to you, are in Asian cultures a sign of respect.

This issue of demeanor in translation (and the implications for deference on appeal) seems like an important question. There must be a good student note or two in here somewhere.

How Bad Does an Immigration Judge Have to be to Get Reversed?

As a series of court decisions from around the country have made clear, our immigration courts — the administrative bodies that, among other things, hear asylum applications — are a disgrace. The major cause is underfunding, requiring the Immigration Judges to shoulder huge caseloads and make decisions at a speed that probably makes quality work next to impossible.

But even the pressures of the job don't excuse the conduct documented in Apouviepseakoda v. Gonzales, 05-3752 (7th Cir., Feb. 2, 2007). Nor, given that the Seventh Circuit has all the time it wants to reach a decision, does it excuse the majority decision to defer to an arbitrary and capricious decision. Judge Posner's dissent is far more persuasive than Judge Evans for the majority — although Posner here fails to persuade Judge Easterbrook, who is the third vote.

Posner points up errors of logic, and notes a judicial demeanor from hell, which together suggest that this was not a fair hearing. The best the majority can say is that the decision, although “odd” is not “so deeply flawed” as to be reversible. If we take it at face value, this looks like the rare case which turned on how deferential a reviewing court should be. But one could be forgiven for reading it as showing a great reluctance on the part of some judges to admit just how bad things are in some IJ's hearing rooms, for to do so would be to open the floodgates to immigration petitions and reversals.

Weekend Linkage

Some recent political stuff to chew on:

• Ewards on Iran. Not-so-hawkish after all or adjusting his message to the audience?
• David Sirota describes how progressive Democratic Senators start learning to use the same blackmail tactics as the right-wing
• How the occupiers drive Humvees in Baghdad — not likely to win hearts and minds, is it?
  
• Will little things like facts (headline: “U.S. can't prove Iran link to Iraq strife”) prevent a US attack on Iran?
• George Soros is sometimes highly undiplomatic. But does violating Godwin's law mean that he's wrong?
• We have a new record! McCain Flip-Flops In 47 Seconds: Claims Success Is Not Realistic In ‘A Few Months,’ Then Says It Is

Stimson Resigns (About Time)

Defense Official Resigns Over Detainee Remarks.

He says he wasn't pushed by Robert Gates. I hope this is as true as lots of other stuff he's said.

Pres. Shalala does Colbert

UM President Donna Shalala appeared on the Colbert show the other day. She endorsed Sen. Clinton for President, agreed with Colbert that Iran is supporting terrorists and (with a little prompting) that they are “absolutely” the enemy and said she was against universal health care.

The high point of this fairly dismal segment may have been when Pres. Shalala said she brought her own pillow to cabinet meetings in the Clinton administration. Unfortunately, this was not because the meetings were so dull, nor it seems for pillow fights, but just to sit on. Or perhaps it was when she got that frightened look in her eye — surely a rare event — as Colbert asked this former President of the University of Wisconsin to imitate the sound a cheese curd makes when you bite it.

Two Related Political Items

Two items with a connection.

First, my Congressional Representative, Ileana Ros-Lehtinen, endorsed McCain for President.

Second, McCain today embarrassed himself (or, if you prefer, further sullied the remaining shreds of his good name) at the confirmation hearing of Gen George Casey to be Army Chief of Staff. McCain's, by buying into the BushCo line that although The Decider™ made all the decisions, it was the evil vizier, Gen. Casey, who is responsible for the debacle in Iraq.

McCain isn't going to be President. I don't even think he'll be the nominee, although I'm less sure of that. I am sure that they'll be nothing of him left by the time he gets the nomination, and that he'll have depleted his greatest asset—the press's infatuation.

Welcome, Rep. Ros-Lehtinen, to the sinking ship.

Molly on W

The president of the United States does not have the sense God gave a duck — so it's up to us. You and me, Bubba.

This war is being prosecuted in our names, with our money, with our blood, against our will. Polls consistently show that less than 30 percent of the people want to maintain current troop levels. It is obscene and wrong for the president to go against the people in this fashion. And it's doubly wrong for him to send 20,0000 more soldiers into this hellhole, as he reportedly will announce next week.

I don't know why Bush is just standing there like a frozen rabbit, but it's time we found out. The fact is WE have to do something about it. This country is being torn apart by an evil and unnecessary war, and it has to be stopped NOW.

What happened to the nation that never tortured? The nation that wasn't supposed to start wars of choice? The nation that respected human rights and life? A nation that from the beginning was against tyranny? Where have we gone? How did we let these people take us there? How did we let them fool us?

—Molly Invins (1944-2007) quoted at Nieman Watchdog Commentary | An appreciation: Mintz on Molly Ivins.