Author Archives: Michael Froomkin

Stay Tuned For Hell To Freeze Over

Words I never thought I would write dept: Andrew Sullivan's Sunday NYT book review article on American torture is … brace yourself … remarkably sensible:

The critical enabling decision was the president's insistence that prisoners in the war on terror be deemed ''unlawful combatants'' rather than prisoners of war. …

The president's underlings got the mixed message. …

What's notable about the incidents of torture and abuse is first, their common features, and second, their geographical reach. No one has any reason to believe any longer that these incidents were restricted to one prison near Baghdad. They were everywhere: from Guantánamo Bay to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for all we know, in any number of hidden jails affecting ''ghost detainees'' kept from the purview of the Red Cross. They were committed by the Marines, the Army, the Military Police, Navy Seals, reservists, Special Forces and on and on. …

Whether we decide to call this kind of treatment ''abuse'' or some other euphemism, there is no doubt what it was in the minds of the American soldiers who perpetrated it. They believed in torture. And many believed it was sanctioned from above. …

Who was responsible? There are various levels of accountability. But it seems unmistakable from these documents that decisions made by the president himself and the secretary of defense contributed to confusion, vagueness and disarray, which, in turn, led directly to abuse and torture. The president bears sole responsibility for ignoring Colin Powell's noble warnings. …

Worse, the president has never acknowledged the scope or the real gravity of what has taken place. His first instinct was to minimize the issue; later, his main references to it were a couple of sentences claiming that the abuses were the work of a handful of miscreants, rather than a consequence of his own decisions. …

And the damage done was intensified by President Bush's refusal to discipline those who helped make this happen. A president who truly recognized the moral and strategic calamity of this failure would have fired everyone responsible. But the vice president's response to criticism of the defense secretary in the wake of Abu Ghraib was to say, ''Get off his back.'' In fact, those with real responsibility for the disaster were rewarded. Rumsfeld was kept on for the second term, while the man who warned against ignoring the Geneva Conventions, Colin Powell, was seemingly nudged out. … Alberto R. Gonzales, who wrote memos that validated the decision to grant Geneva status to inmates solely at the president's discretion, is now nominated to the highest law enforcement job in the country: attorney general. The man who paved the way for the torture of prisoners is to be entrusted with safeguarding the civil rights of Americans. It is astonishing he has been nominated, and even more astonishing that he will almost certainly be confirmed.

But in a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ''evil'' might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes.

I'm not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it's worth a thorough reassessment of rhetoric and war methods. Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ''heroic'' protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.

OK, one might have preferred to see this before the election, but better late than later.

Posted in Iraq Atrocities | Comments Off on Stay Tuned For Hell To Freeze Over

A Real Good Start

There's an old, old joke that goes,

Q: what do you call it when a ship with 800 lawyers aboard sinks?

A: A good start.

Here's why people tell jokes like that:

CNN.com – Pair arrested for telling lawyer jokes – Jan 12, 2005

Did you hear the one about the two guys arrested for telling lawyer jokes?

It happened this week to the founders of a group called Americans for Legal Reform, who were waiting in line to get into a Long Island courthouse.

“How do you tell when a lawyer is lying?” Harvey Kash reportedly asked Carl Lanzisera.

“His lips are moving,” they said in unison.

While some waiting to get into the courthouse giggled, a lawyer farther up the line Monday was not laughing.

He told them to pipe down, and when they did not, the lawyer reported the pair to court personnel, who charged them with disorderly conduct, a misdemeanor.

“They just can't take it,” Kash said of lawyers in general. “This violates our First Amendment rights.”

Reading between the lines of the rest of the story, it sounds as if they might indeed have been somewhat overloud and disorderly for a courthouse. But even so…

Posted in Law: Free Speech | 1 Comment

A Classroom Etiquette Question I’m Asking My Students in Administrative Law

Here is a classroom etiquette question…or is it an administrative law question in disguise?

1. Is it appropriate for students to chew gum in class?

2. Suppose an instructor believes that chewing gum in class is not appropriate. Assuming the relevant Student Handbook is silent on the issue of food (and gum) in class, and that there are no relevant precedents in formal disciplinary proceedings, what notice if any is required to make it fair to discipline students for this? Is there anything else you would need to know before answering this question?

3. Is your answer the same or different for gum chewers who blow bubbles in class? Why?

4. “In class” could mean a lot of things: high school, college, law school, bar review, traffic school. Would your answer to #1 & #2 be different in any of these circumstances? Why?

Posted in Law School | 8 Comments

(Much of) The Right Wing Is Now In Denial on Torture

At the AALS last week, I heard a (formerly) respected law professor announce to a room that he had looked carefully and he didn't see any evidence of systematic torture by the US. It was — although he didn't use these words — the 'few bad apples' all over again. At least a few of us in the packed room expressed our shock audibly — which isn't something you usually get at such a polite, even staid, event.

There's clearly a lot of this denial going around, which is why Marty Lederman's latest item demolishing the “best defense of the administration’s record on torture” is well worth reading.

In her article, MacDonald agrees that the 2002 OLC Memo was “hair-raising,” and “understandably caused widespread alarm.” She argues, however, that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. MacDonald further argues that, in contrast to the CIA, Pentagon officials have not come close to violating the law; that the military’s techniques have been “light years from real torture”; that the interrogation policies in Cuba and Afghanistan are “irrelevant” to what happened in Abu Ghraib; and that, in fact, the Armed Forces have been unduly hamstrung by a culture of legalism that is an unfortunate byproduct of “fanatically cautious” Pentagon lawyers steeped in the outmoded ways of the Geneva Conventions.

This version of the story appears to be selective, at best.

There's clearly much here that's not fully in the open, notably the extent to which the Torture Memos were driven by a need to attempt to justify CIA abuses which had already happened.

But given the number of reports we do have of overly coercive questioning to say the least, no one should be allowed to claim that there wasn't some sort of pattern and practice at work, creeping its way from the CIA to other interrogation centers, destroying whatever moral authority the US might hope to claim, inflaming the locals against us, and creating a new cadre of detainees (and families) who will hate us and try to destroy us.

Whether it also will make a mockery of the concepts such as the rule of law that we try to teach our students still remains to be seen.

Posted in Guantanamo, Iraq Atrocities | 3 Comments

Are There No Terrorists Under the Bed?

Robert Scheer writes in the LA Times, Is Al Qaeda Just a Bush Boogeyman?

Is it conceivable that Al Qaeda, as defined by President Bush as the center of a vast and well-organized international terrorist conspiracy, does not exist?

To even raise the question amid all the officially inspired hysteria is heretical, especially in the context of the U.S. media's supine acceptance of administration claims relating to national security. Yet a brilliant new BBC film produced by one of Britain's leading documentary filmmakers systematically challenges this and many other accepted articles of faith in the so-called war on terror.

“The Power of Nightmares: The Rise of the Politics of Fear,” a three-hour historical film by Adam Curtis recently aired by the British Broadcasting Corp., argues coherently that much of what we have been told about the threat of international terrorism “is a fantasy that has been exaggerated and distorted by politicians.

Wouldn't that be something?

Continue reading

Posted in Politics: Tinfoil | 3 Comments

Stephen Vladeck Will Join Our Faculty

I am pleased to report that Stephen I. Vladeck will be joining our faculty next year. Steve has already made a name for himself, at a horribly young age, as a fierce advocate for the rights of those detained without trial. His scholarly writing promises a great academic future.

We interviewed several other impressive faculty candidates before the vacation, and have plans to interview a small number of candidates in the next few weeks. Given the quality of the field, I think it is highly likely that we'll make more offers. (Exactly when is harder to say.)

Note: As I am a member of our Appointments Committee this year, I wouldn't ordinarily post anything about our hiring until the appointments season was over, for fear that it might annoy the extraordinarily fine candidates we interviewed later than Mr. Vladeck and haven't yet gotten around to voting on. I'm posting this because I found the announcement on the law school's public web page, which suggests that it's not exactly a secret.

Don't panic, dear candidates, we interviewed him very early.

Posted in U.Miami | 2 Comments