Monthly Archives: June 2004

Supreme Court Decides Padilla This Week

Most of the big cases I mentioned last week remain to be decided. That means they will be decided this week, maybe today.

I think that the Padilla case is so important that I almost titled this item “Supreme Court to decide if this is still a free country”. I am an optimist about big things, although not always about small, and something of a patriot, so I persist in the belief that the Supreme Court will get this one right. Just about all the lawyers I talk to agree, although no one thinks it will be the 9-0 vote that it deserves to be. Estimates cluster at 6-3 or 7-2.

If we're wrong in our predictions, and it goes badly, it's time to raise hell, or we will be remembered as the generation that let the American Experiment go sour.

Posted in Law: Con Law: Marriage | 1 Comment

The Barometer

Michael Moore's movie is a box office smash: The Political 'Fahrenheit' Sets Record at Box Office. Preaching to the choir, or a signal about the election?

Posted in Politics: US: 2004 Election | 9 Comments

Jack Balkin Connects the Dots

Jack Balkin connects the dots: If large numbers of administration lawyers were aware of the torture memo, and if (as I speculated) one of the motivations for it was retrospective justification of CIA methods, e.g. refusing pain medicine to someone shot in the groin, then something is indeed rotten in the SG's office:

Now go back and reconsider this exchange in front of the Supreme Court, two years later, on April 28th, 2004 in this light:

Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement
in the Hamdi cases whether judicial review should be foreclosed even in
cases of alleged torture, Clement dodged the question. “Our executive,”
he insisted, doesn't engage in torture. “Judicial micromanagement” was
inappropriate in wartime; “you have to trust the executive.”

Meanwhile the unnamed leakers are out in force complaining that their hands are tied by 'uncertainty' about how much pain they can inflict, and as a result that torrent of intelligence we were previously enjoying is now just a little trickle. Given the very high quality of recent intelligence (something that the NYT's article on its Officially Sanctioned Leak just somehow neglects to mention), I am very very sceptical indeed about this planted story.

You know, it's getting to the point where I'm actually wondering why I subscribe to the New York Times…

Posted in Law: Ethics | Leave a comment

Torture Memo Enthusiastically Approved at Highest Levels; CIA Getting Cold Feet

Dana Priest has so many scoops in one story, there’s a danger some may get lost:

First, the CIA is getting nervous and has decided to stop doing whatever undisclosed things its has been doing to its prisoners in its series of secret camps in undisclosed foreign locations, pending legal review:

The “enhanced interrogation techniques,” as the CIA calls them, include feigned drowning and refusal of pain medication for injuries. The tactics have been used to elicit intelligence from al Qaeda leaders such as Abu Zubaida and Khalid Sheik Mohammed.

“Everything's on hold,” said a former senior CIA official aware of the agency's decision. “The whole thing has been stopped until we sort out whether we are sure we're on legal ground.” A CIA spokesman declined to comment on the issue.

CIA interrogations will continue but without the suspended techniques, which include feigning suffocation, “stress positions,” light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government.

Meanwhile, back in Washington D.C. the coverup over the Torture Memos continues to unravel. Let’s start with the Bybee Memo — which was approved all the way up to the top (Cheney’s office):

Although the White House repudiated the memo Tuesday as the work of a small group of lawyers at the Justice Department, administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel's office and Vice President Cheney's office.

And that royalism stuff about how if the President says it’s legal people who rely on that shouldn’t’ be prosecuted, and how Congress, even when approving or implementing treaties (“the supreme Law of the Land” – US Constitution) has no ability to in any way limit the full, plenary, unstoppable power of the President when acting as Commander in Chief? Well, all that was not just approved but demanded and applauded from the top:

A Justice Department official said Tuesday at a briefing that the [OLC] went “beyond what was asked for,” but other lawyers and administration officials said the memo was approved by the department's criminal division and by the office of Attorney General John D. Ashcroft.

In addition, Timothy E. Flanigan — then deputy White House counsel — discussed a draft of the document with lawyers at the Office of Legal Counsel before it was finalized, the officials said. David S. Addington, Cheney's counsel, also weighed in with remarks during at least one meeting he held with Justice lawyers involved with writing the opinion. He was particularly concerned, sources said, that the opinion include a clear-cut section on the president's authority.

What did all this mean on the ground? Tell me this isn’t a form of torture:

Abu Zubaida was shot in the groin during his apprehension in Pakistan. U.S. national security officials have suggested that painkillers were used selectively in the beginning of his captivity until he agreed to cooperate more fully

That’s not the view of the self-satisfied armchair warrior cadre in DC, however. They don't see any torture here:

At the same time, the former official said, “we never had a situation where we said, 'You can do anything you want to.' We never, ever did that. We were aggressive, but our people were very scholarly and lawyerlike.”

“Scholarly”? “Lawyerlike”? Sorry, but the “selective” use of painkillers for someone shot in the groin isn't like any Socratic Method I recognize.

Posted in Iraq Atrocities | 26 Comments

NYT Guide to Torture Memos

Confused about all the memos and the timeline? See this handy New York Times Guide to the Memos on Torture.

And stop a minute to think that we have sunk so low, under the weight of so many memos about torture, that we need a guide to them.

Posted in Iraq Atrocities | 2 Comments

A Day in Amsterdam

I leave for Amsterdam on Tuesday evening, for what promises to be a really interesting conference at the IViR, the Institute for Information Law of the University of Amsterdam, this time in co-production with Tilberg University. (The joint venture between Amsterdam and Tilburg has produced a genuine Internet studies powerhouse.) The IViR could be my favorite place to go for conferences, as I always meet interesting people, and it has a lovely setting. My job is to comment on a great paper by Ronald Leenes and Bert-Japp Koops of Tilberg.

Even though I booked the tickets a while ago, the transatlantic airfares were unusually high. It turned out that I could lower the price from insane to painful by returning a day late, so in addition to my arrival day spent in a jet-lagged haze, I'm also going to have Saturday, July 3 (by which time I'll be over jet lag), free to actually tourist around Amsterdam, one of my favorite cities. As best I can recall, this is the first time in at least a decade, maybe more, that I have an entire extra day just to tourist as part of a conference trip unless I was traveling with the family. Usually when I'm on my own I book myself for fairly tight schedules, even for the transatlantic events, in order to minimize the time away from home. If all goes well, I'll be home in time for the July 4 fireworks, assuming I can stay up that late.

I spent a very happy week in Amsterdam while a grad student, so I have a pretty good idea of which museums I'd like to revisit, and just how much fun it is to walk around Amsterdam in the sunshine. But if anyone has advice on where to eat, or especially where to find WiFi hotspots I would be most grateful. Last time I went to Amsterdam I took a long list of alleged hotspots with me that I'd collated from several internet sites, and only one of them actually worked, and that was in a nice cafe but somewhat far from my hotel. And yes, it's the same infuriating hotel they booked me into last time.

Posted in Talks & Conferences | 6 Comments