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Monthly Archives: May 2008
Triumph of Newspeak at the Pentagon: telling the truth is considered dishonorable behavior.
[The former chief military prosecutor for terrorism trials at Guantanamo Bay, Air Force Col. Morris] Davis's dispute with Air Force Brig. Gen. Thomas W. Hartmann resulted in a military judge disqualifying Hartmann in the case of Salim Ahmed Hamdan — an action that has led other military defense lawyers to file similar motions in cases against five men accused of taking part in the conspiracy surrounding the Sept. 11, 2001, attacks. An e-mail Davis wrote to defense lawyers on Tuesday, in which he said he would not cooperate in future cases, was released as part of such a motion yesterday.
Davis wrote that Pentagon officials notified him that he did “not serve honorably” as top prosecutor and would be denied [a] medal. Davis said he fears other reprisals before his scheduled retirement this year, despite a military judge's order that no one who testified on the matter face adverse actions.
Meanwhile, the Pentagon also dismissed a judge in a different Guantanamo trial, apparently because he was not compliant enough with prosecution demands that the proceedings begin before the November election. Installing a new judge will undoubtedly increase the risk that the whole proceeding will look like a show trial, but at least the show may start on schedule.
Mark Graber writes at Balkinization,
When thinking about the role of courts, lawyers, legal scholars and citizens should not automatically treat Brown as a paradigm and such cases as Dred Scott, Hepburn, Pollock and others as anomalies. Seen from broader history perspective, Brown is far more anomalous than Dred Scott. Throughout most of American history (and in many new constitutional democracies), progressives sought legislature victories and played defense in court. The Supreme Court, reformers understood, was far more likely to declare unconstitutional legislative efforts to promote political equality than prevent elected officials from discriminating unjustly. Times may change, but a good case can be made that, by protecting white persons from affirmative action programs and affluent Americans from campaign finance restrictions, the contemporary Supreme Court is merely reverting to form.
I've been telling students something like this for 15 years. My version is a little different, as it makes a little more space for a libertarian/conservative split when it comes to some issues touching on the Bill of Rights, with the libertarians sometimes sounding quite “liberal” at times. But quibbles aside, it never ceases to amaze me that the fundamental idea that our courts are most frequently, generally, perhaps even naturally, conservative-bordering-on-reactionary is even controversial, much less that it is far from the dominant consensus. (That said, I do accept there is a case to be made that the current court is more conservative than the post-Korean-War norm, but that's just a question of how far back you sample.)
I understand that law school faculties underwent a great expansion which resulted in their being stuffed with and dominated by a generation that saw the Warren court as the ur-Court. But even if that is your ideal, and it wasn't perfect, why does this belief so often carry with it the myopic view that the Warren court was not a relatively rare historical aberration? Even most of the seemingly progressive moves of the Marshall Court were actually centralizing (Federalist), then seen as generally supporting the interests of the propertied and creditor class. And in between…
Such at least is my positive claim. The normative implications are less clear, for there are reasons why it may not be all bad to have a conservative bias in the courts, at least if one has a small-d democratic bias in the legislature. (I'd say we don't have that now, by the way, due to various sorts of gerrymandering of congressional districts and the small-d democratic imbalances in the Senate.)
But one positive implication is clear: progressives put their reliance on courts at their peril. Social change happens most commonly in civil society (not least in churches) and at the ballot box. The courts are most commonly followers, not leaders. Mr. Dooley was a genius.
- Crooks and Liars, Lincoln Chafee: “There are two John McCains”
- Progressive Media USA, John McSame
- The slideshow John McCain really doesn't want you to see.
- The General, McUlysses
Today is the last day to file a claim online (or have one postmarked) in the In re Currency Conversion Fee Antitrust Litigation (MDL 1409) case. You are a member of the plaintiff class if you used a Visa, Master Card and/or Diners Club credit or debit card abroad between Feb 1, 1996 and Nov. 8, 2006.
(See I Am A Plaintiff for more details.)
I took option two, having calculated that I was abroad for 394 days during the relevant period. That's a lot of days.